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Civil Rights (2 of 2) 1991 [2]
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John Sununu Issues Files
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Originally Processed With FOIA(s):
FOIA Number:
1998-0004-F[2]; 1999-0285-F
S
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin: Chief of Staff, White House Office of
Series:
Sununu, John, Files
Subseries:
Issues Files
OA/ID Number:
29146
Folder ID Number:
29146-008
Folder Title:
Civil Rights (2 of 2) 1991 [2]
Stack:
Row:
Section:
Shelf:
Position:
G
15
24
7
5
HE PRESIDENT OWES
DANFORTH A PRIVATE MEETING.
HE WILL NEED A PRE-BRIEF
WITH BOYDEN/JOHN SUNUNU/
FRED MCCLURE. A LISTENING
SESSION.
Document Originally
Attached to
Following Page
WHITE HOUSE COMCEN
FRI 12 JUL 91 16:46
PG.03
UNITED STATES SENATE
WASHINGTON, D.C.
Disans
John,
JOHN C. DANFORTH
MISSOURI
July 10, 1991
The President
The White House
Washington, D. C. 20500
Dear Mr. President:
Many thanks for your phone call and for your
willingness to visit with me about the civil rights
legislation when you return from Europe. I think we
are now at the point where the resolution of one
policy question is the key to concluding the civil
rights debate. Here is the question:
Should it be lawful for an employer to use job
qualifications which are unrelated to ability to
perform the job and which have the effect of
screening women or minorities from employment?
Examples of such job qualifications might
include the possession of a high school diploma as a
condition of employment as a janitor, or a rule that
an employer will not hire single parents. In both
cases, the qualifications would be unrelated to
ability to perform the job, and would have the
practical effect of screening out minorities or
women.
Exactly this question was decided by the Supreme
Court in the case of Griggs V. Duke Power Co. In
Griggs, the Court held that an employer could not
require a high school diploma as a qualification for
a job where the diploma had no relationship to
ability to perform the job and where the practical
effect was to screen out blacks. This remained the
law from 1971 until the Supreme Court decided the
Wards Cove case in 1989.
Throughout the lengthy discussions of the civil
rights legislation, the Administration has taken the
position that we should restore the Griggs decision.
In fact, the Administration has said that the exact
WHITE HOUSE COMCEN
FRI 12 JUL 91 16:55
PG.01
- 2 -
wording of Griggs should be included in the statutory
language. Both Republican and Democratic Senators
who have been working on the legislation have
accepted the Griggs language insisted on by the
Administration.
EEOC Chairman, Evan Kemp, has stated that an
employer's requirement of academic credentials might
further the Administration's education program.
However, such a policy, even if justified on the
basis of education, would contradict Griggs unless
the academic credentials are related to ability to
perform the job. To endorse such a policy would be
viewed as a negative statement on civil rights and a
reversal of the Administration's support of the
Griggs case.
Mr. President, if you agree that the Griggs case
was decided correctly, and that qualifications
unrelated to ability to perform the job should not be
lawful where they are used to screen women or
minorities from employment, I believe we are a short
step from reaching a successful conclusion to the
civil rights debate.
Sincerely,
Dave
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
01a. Memo
From C. Boyden Gray to POTUS
7/19/91
P-5
Re: Civil Rights - Senator Danforth (2 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
Open on Expiration of PRA
Series:
Sununu, John, Files
(Document Follows)
Subseries:
Issues Files
By If (NLGB) on 4/21/08
WHORM Cat.:
File Location:
Civil Rights (2 of 2) 1991 [2]
Date Closed:
1/3/2005
OA/ID Number:
29146-008
FOIA/SYS Case #:
1998-0004-F[2]
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
THE WHITE HOUSE
WASHINGTON
91 JUL 19 Fil 4: 35
July 19, 1991
MEMORANDUM FOR THE PRESIDENT
FROM:
C. BOYDEN GRAY GRAYCHIN
SUBJECT:
Civil Rights - Senator Danforth
Although Senator Danforth's July 10 letter to you is incorrect in
many respects, it does focus attention on the real issue:
whether Federal law should permit measures of educational
achievement to have any role in employment decisions.
Under Danforth's proposal, employers will not be able safely to
use tests, diploma requirements, or other measures of educational
achievement unless they conduct a scientific validation study
that proves a direct link between the criteria adopted and
performance of the exact job at issue. Such studies are so
costly that only the largest corporations can afford them. And
they only prove what everyone already knows. Experience with the
Armed Forces test, practices in other countries, and many studies
by industrial psychologists, all show that educational
achievement is highly correlated with worker productivity. It
makes no sense to require each employer to reinvent the wheel,
especially when it is prohibitively expensive to do so.
Danforth believes that Federal law should forbid employers from
requiring diplomas for janitorial jobs. His proposal will
certainly do that, and more. But he does not explain why
employers should be stopped from requiring that a janitor finish
high school. One study found that high school diplomas predict
very little besides low absenteeism and low job turnover, the
very qualities that are probably most important for janitors.
Bill Coleman has repeatedly said that he wants to stop employers
from requiring high school diplomas for any entry-level job
because blacks have a much higher dropout rate than whites.
Danforth's bill, like its Democrat predecessors, is designed to
?
produce a complete disconnect between performance in school and
opportunities in the entry-level job market. But the job market
is the only mechanism that can reliably provide kids with the
incentive to work hard in school. If we eliminate that link, all
our efforts to revitalize American education will be fruitless.
The Coleman/Danforth approach undermines the central premise of
Brown V. Board of Education, that basic education is "the very
foundation of good citizenship." And that is on top of the
damage their approach will do to the economy. Fortunately, there
is one bright spot: the Armed Forces are exempted from Title
VII, so at least the military will still be able to select high
quality personnel.
Finally, a quick review of the major errors in Danforth's letter:
As the Attorney General explained to him in a five-page
letter a month ago, Danforth's interpretation of the 1971
Griggs decision is untenable.
Danforth also misinterprets current law and the relevant
provisions of your bill. He suggests, for example, that
current law would allow employers to "screen out" women by
refusing to hire single parents. Under well-settled law
(and your bill), it would be virtually impossible to defend
such a practice. It is interesting and revealing that
Danforth does not cite a single case in which the courts
have ever upheld a silly or unconscionable employment
practice under the well-established legal test incorporated
into your bill.
Strangest of all, Danforth says that he and the Democrats
have accepted the language insisted on by the
Administration. This is flatly wrong.
The single most important issue raised by Danforth's letter is
the relation between this civil rights legislation and America
2000. For that reason, I recommend that any meeting you have
with Danforth include Evan Kemp and David Kearns (and perhaps
Secretary Alexander).
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
01b. Note
From Phillip D. Brady to POTUS
7/11/91
P-5
Re: Attached memo (1 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
Series:
Sununu, John, Files
Open on Expiration of PRA
Subseries:
Issues Files
(Document Follows)
WHORM Cat.:
By
Ip
(NLGB) on 10/28/05
File Location:
Civil Rights (2 of 2) 1991 [2]
Date Closed:
1/3/2005
OA/ID Number:
29146-008
FOIA/SYS Case #:
1998-0004-F[2]
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile
THE WHITE HOUSE
WASHINGTON
July 11, 1991
MR. PRESIDENT:
Fred McClure advises that
you asked this be sent
directly to you. Copies
have been provided to the
Chief of Staff and Boyden
Gray, and they understand
this is a personal, private
communication.
Thank you.
Phil
Phillip D. Brady
UNITED STATES SENATE
WASHINGTON, D.C.
JOHN C. DANFORTH
MISSOURI
July 10, 1991
The President
The White House
Washington, D. C. 20500
Dear Mr. President:
Many thanks for your phone call and for your
willingness to visit with me about the civil rights
legislation when you return from Europe. I think we
are now at the point where the resolution of one
policy question is the key to concluding the civil
rights debate. Here is the question:
Should it be lawful for an employer to use job
qualifications which are unrelated to ability to
perform the job and which have the effect of
screening women or minorities from employment?
Examples of such job qualifications might
include the possession of a high school diploma as a
condition of employment as a janitor, or a rule that
an employer will not hire single parents. In both
cases, the qualifications would be unrelated to
ability to perform the job, and would have the
practical effect of screening out minorities or
women.
Exactly this question was decided by the Supreme
Court in the case of Griggs V. Duke Power Co. In
Griggs, the Court held that an employer could not
require a high school diploma as a qualification for
a job where the diploma had no relationship to
ability to perform the job and where the practical
effect was to screen out blacks. This remained the
law from 1971 until the Supreme Court decided the
Wards Cove case in 1989.
Throughout the lengthy discussions of the civil
rights legislation, the Administration has taken the
position that we should restore the Griggs decision.
In fact, the Administration has said that the exact
SAT 20 JUL 91 00:02
PG.06
WHITE HOUSE COMCEN
- 2 -
wording of Griggs should be included in the statutory
language. Both Republican and Democratic Senators
who have been working on the legislation have
accepted the Griggs language insisted on by the
Administration.
EEOC Chairman, Evan Kemp, has stated that an
employer's requirement of academic credentials might
further the Administration's education program.
However, such a policy, even if justified on the
basis of education, would contradict Griggs unless
the academic credentials are related to ability to
perform the job. To endorse such a policy would be
viewed as a negative statement on civil rights and a
reversal of the Administration's support of the
Griggs case.
Mr. President, if you agree that the Griggs case
was decided correctly, and that qualifications
unrelated to ability to perform the job should not be
lawful where they are used to screen women or
minorities from employment, I believe we are a short
step from reaching a successful conclusion to the
civil rights debate.
Sincerely,
Jack
Senator Danforth and his Republican co-sponsors have accepted a
reasonable compromise definition of "business necessity." There
are many other important issues to be resolved. Once that
happens, Democrat support will be needed to pass a bill. While
there has been definite progress, we have a long way to go.
SENT. BY:HERITAGE FOUNDATION-1 ; 6-28-91 6:16PM ;
2025460904->
2024562397:# 2
Heritage Foundation
A tax-exempt public policy research institute
June 28, 1991
John H. Sununu
Chief of Staff
The White House
Dear Governor Sununu:
When I sent you my other letter earlier today, I had not yet
read today's newspapers, so I had not seen the stories about the
negotiations with Senator Danforth breaking down.
I spoke with Nelson Lund just a few minutes ago. He said
that there may not be any need to put out a paper analyzing the
revised bills that Senator Danforth introduced yesterday because
no one else seems to be joining the Senator's cause. Nelson and
I will speak again on Monday.
Sincerely yours,
Bill
William G. Laffer III
McKenna Fellow in Regulatory
and Business Affairs
Edwin J. Faulner, Jr., President
Phillip N. Truluck, Executive Vice President
Herbert B. Barkowits, Vice President
Burton Yale Pines, Senior Vice President
Charles L. Heatherly, Vice President
Peter E.S. Pover, Vice President
Kate Walsh O'Betrne, Vice President
Terrence Scanlon, Vice President and Treasurer
Bernard Lomas, Counselor
Board of Trustees
David R. Brown, M.D.
Hon. Shelby Cullom Davis, Chairman
Joseph Coors
Thomas A. Roe
Robert H. Krieble, Fh.D., Vice Chairman
Midge Decter
Richard M. Scatfe
J. Frederic Rench, Secretary
Edwin J. Feulner, Jr.
Hon. Frank Shakespeare
Lewis E. Lehrman
Joseph R. Kays
Hon. William E. Simon
J. William Middendorf, II
Jay Van Andel
214 Massachusetts Avenue, N.E. Washington, D.C. 20002-4999 (202) 546-4400
SENT BY:HERITAGE FOUNDATION-1 ; 6-28-91 4:01PM
;
2025460904->
2024562397; 2
Copy to Boyden
Heritage Foundation
A tax-exempt public policy research institure
June 28, 1991
John H. Sununu
Chief of Staff
The White House
Dear Governor Sununu:
I just wanted to give you a quick update on things, so you
don't think I abandoned you.
After examining Senator Danforth's three bills more closely,
I concluded:
(1) that under any interpretation of their language, the
bills still had substantial quota-promoting tendencies;
(2) that in several critical respects, however, the bills
were highly ambiguous; and therefore
(3) that the extent and degree of the remaining quota prob-
lems depended heavily on what certain provisions meant.
Based both on the ambiguity (which I attributed to sloppy drafts-
manship) and on the lingering quota problems, I was convinced
that Senator Danforth would have to make substantial changes in
the bills in order to make them acceptable to the President and
the American people. Therefore, my supervisors and I felt that
it made more sense, under the circumstances, for us to conserve
our ammunition and wait to see what Danforth comes up with next.
In the mean time, I have kept in regular contact with Nelson
Lund in the White House Counsel's Office. when we spoke Tuesday
evening a couple of days ago, he told me that there had been a
fairly favorable meeting with Danforth in which the Senator had
been fairly receptive to at least one change suggested by the
Administration and had indicated that he would be making other
changes in the bills as well. I don't know any of the details of
Edwin J. Feulner, Jr., President
Phillip N. Truluck, Executive Vice President
Burton Yale Pines, Senior Vice President
Herbert B. Berkowitz, Vice President
Charles L. Heacherly, Vice President
Kate Walsh O'Beirne, Vice President
Peter E.S. Pover, Vice President
Terrence Scanion, Vice President and Treasurer
Bernard Lomas, Counselor
Board of Trustees
David R. Brown, M.D.
Hon. Shelby Cullom Davis, Chairman
Thomas A. Roe
Joseph Coors
Robert H. Krieble, Ph.D., Vice Chairman
Richard M. Scaife
Midge Decter
J. Frederic Rench, Secretary
Hon. Frank Shakespeare
Edwin J. Feulner, Jr.
Lewis E. Lehrman
Hon. William E. Simon
Joseph R. Keys
J. William Middendorf, II
Jay Vun Andel
214 Massachusetts Avenue, N.E. Washington, D.C. 20002-4999 (202) 546-4400
SENT BY:HERITAGE FOUNDATION-1 ; 6-28-91 4:02PM ;
2025460904->
2024562397:# 3
what was discussed, and I don't know what changes the Senator has
in mind or whether they would be changes suggested by you or by
Senator Kennedy, but it would appear that our decision to hold
our fire has been vindicated, at least for now. Nelson and, I
believe, Boyden both agree that it would be better at this stage
for me not to attack Danforth's initial versions for being the
quota bills that they are, but instead to wait and see what he
comes up with next, and whether he moves more in Ted Kennedy's
direction or in yours. I will continue to stay in contact with
Nelson, and I will be prepared to turn out a short paper on Sena-
tor Danforth's revised versions (depending of course on what they
say) as soon as they become available.
In the mean time, I will be writing on another matter which
also merits your personal attention -- Senator Glenn's attack on
OIRA. I assume you are already familiar with this subject. This
attack threatens one of the most important protections of indivi-
dual liberty built into the Constitution by our founding fathers
-- the separation of powers. At issue is nothing less than the
President's right to control the Executive Branch of government
and to direct the actions of his subordinates.
Under the first sentence of Article II, subordinate officers
have no independent standing or authority; they are merely agents
of the President, and they enjoy only such authority as the Pres-
ident chooses to delegate to them. Senator Glenn's bill would
severely compromise (at least indirectly) the President's ability
to control his subordinate officers by requiring them to submit
the regulations they promulgate to review by OMB prior to promul-
gation. Moreover, by holding nominees hostage unless the Presi-
dent agrees to support his bill, Senator Glenn commits a form of
constitutional extortion which represents a further threat to the
principle of separation of powers. Therefore, I hope that when
the time comes for the Administration to take a position on this
matter, you will advise the President not to give in to this
attempted extortion but instead to defend the legitimate consti-
tutional prerogatives of his office and to oppose Senator Glenn's
evil bill. (I guess you can tell I have strong views on this
subject.)
sincerely yours,
Bill
William G. Laffer III
McKenna Fellow in Regulatory
and Business Affairs
P.S. Illegitimi non carborundum, of course.
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
02. Letter
From Evan J. Kemp to John Sununu
6/24/91
Re: "Business Necessity" Language Proposed by Danforth
(5 pp.)
Collection:
Record Group:
Bush Presidential Records
Open on Expiration of PRA
Office:
Chief of Staff, White House Office of
(Document Follows)
Series:
Sununu, John, Files
Subseries:
Issues Files
BVOR (NLGB) on 10/28/05
WHORM Cat.:
File Location:
Civil Rights (2 of 2) 1991 [2]
Date Closed:
1/3/2005
OA/ID Number:
29146-008
FOIA/SYS Case #:
1998-0004-F[2]
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile
EQUAL EMPLOYMENT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
WASHINGTON, D.C. 20507
COMMISSION
JUN 24 1991
OFFICE OF
THE CHAIRMAN
The Honorable John H. Sununu
Chief of the Staff to the President
First Floor, West Wing
The White House
Washington, D.C. 20500
Dear Governor:
As Chairman of the principal Federal agency charged with
implementing civil rights laws as they apply to employment
discrimination, I am urging that the Administration not accept the
"business necessity" language proposed by Senator Danforth in his
letters to you of June 19 & 20, 1991.
The focus of the Danforth "business necessity" language will, if
adopted, undermine the President's America 2000: An Education
Strategy by making it extremely difficult for employers to show
that use of educational credentials and objective measures of
academic achievement are legally defensible. The tragedy of the
Danforth proposal is that it would actually cause disproportionate
harm to minorities, while claiming the flag of civil rights.
In proposing his latest definition of "business necessity," Senator
Danforth quoted the following language from the 1971 Supreme Court
Griggs V. Duke Power Co. decision:
The Commission accordingly interprets 'professionally
developed ability test' to mean a test which fairly
measures the knowledge or skills required by the
particular job or class of jobs which the applicant
seeks, or which fairly affords the employer a chance to
measure the applicant's ability to perform a particular
job or class of jobs. (401 U.S. 433 n.9, emphasis in
Senator Danforth's letter).
My concern is that the Commission and the courts have so broadly
construed the meaning of Griggs that all selection procedures, not
just employment tests, must be shown to be a "business necessity"
if they adversely affect members of a class covered by Title VII.
The 1978 Uniform Guidelines on Employee Selection Procedures, for
example, define the universe of affected practices as follows:
Section 2B: Employment decisions. These guidelines apply
to tests and other selection procedures which are used
as the basis for any employment decision. Employment
2
decisions include but are not limited to hiring,
promotion, demotion, membership (for example, in a labor
organization), referral, retention, and licensing and
certification, to the extent that licensing and
certification may be covered by Federal equal employment
opportunity law. Other selection decisions, such as
selection for training or transfer, may also be
considered employment decisions if they lead to any of
the decisions listed above (emphasis added).
The most serious shortcoming of Senator Danforth's proposal is its
focus on job performance in the "business necessity" definition.
While seemingly reasonable at first blush, Senator Danforth's focus
on job performance will make it extremely difficult, if not
impossible, for employers to show that use of educational
credentials and objective measures of academic achievement are
legally defensible.
The Danforth proposal may constrain an employer in unexpected ways.
Imagine the virtual impossibility of defending, for example, an
employer's use of a high school diploma or a liberal arts degree
in English or history in terms of how that knowledge directly
relates to job performance for most entry-level positions. It
simply can't be done. Furthermore, are undergraduate education
majors the only teaching candidates qualified to teach? The
Danforth proposal's focus means a school district in many cases
would not be able to prefer candidates with advanced degrees
because the undergraduate education degree is the only "correct"
curriculum directly related to job performance.
The
Administration's bill, by contrast, would permit that same school
district to insist on candidates with advanced degrees and non-
education majors with degrees, for example, in English or history.
An additional unintended consequence of the Danforth's bill's focus
on job performance is that it will undermine the President's
America 2000: An Education Strategy. One of the strategic national
goals established by President Bush is that by the year 2000:
" (E) very school in America will ensure that all students
learn to use their minds well, so they may be prepared
for responsible citizenship, further learning, and
productive employment in our modern economy."
Yet as Chester Finn recently wrote in a New York Times op-ed piece
(5/18/91) entitled "Educational Reform vs. Civil Rights Agendas,"
realizing the President's educational strategy will mean
challenging the status quo:
How many personnel directors will be able to convince a
Federal enforcer or judge that a young person's command
of science and geography is germane to the work of a
forklift operator or receptionist? Yet so long as
3
employers are inhibited from examining a candidate's test
scores, 'rational' students will see no payoff for
buckling down to learn such subjects. High marks won't
matter.
Challenging the status quo means reexamining Griggs in light of an
economy that is significantly more complex and demanding than is
suggested by the facts at issue in that power plant. The fact
situation in Griggs revealed that Duke Power waived their high
school diploma requirement for initial assignment to manual labor
positions but required the diploma for those wishing to transfer
to better paying indoor jobs. Duke Power used an alternative
requirement that instead of having a high school diploma, in order
to qualify for positions requiring more than a strong back, it was
necessary to attain the average score for high school graduates
nationwide on two professionally developed ability tests. As I am
sure by now you are aware, both the high school diploma and test
requirements adversely affected minorities and the rest, as they
say, is history.
The Supreme Court has held that an employer has the burden to
defend the "business necessity" of any employment standard that
adversely affects members of a class covered by Title VII.
Unreasonably narrow interpretations of "business necessity" by the
EEOC, the Labor Department, and some lower courts created terrible
legal risks for firms that required educational achievement of
their applicants. As a consequence of Griggs, given the expense
and uncertainty of Title VII litigation, many employers simply
abandoned requiring high school diplomas and checking transcripts
for any job. Furthermore, the Supreme Court in Griggs stated that:
"(I)t is unnecessary to reach the question whether
testing requirements that take into account capability
for the next succeeding position or related future
promotion might be utilized upon a showing that such long
range requirements fulfill a genuine business need."
We think that improving this nation's competitiveness warrants
addressing the promotability issue of "capability for the next
succeeding position" and the Administration's bill does SO.
The unintended consequence of Griggs has been to eliminate
employers' ability to reward learning. The resulting lack of
signals to students from employers that academic achievement counts
has meant that for the past two decades since the 1971 Griggs
decision, the most basic incentive for many students to take school
seriously has been missing. Now, more than a quarter of a century
after the Civil Rights Act of 1964 was passed and in an
increasingly competitive multi-national marketplace, we find that
our economy is less dependent on strong backs and is more dependent
on jobs requiring developed cognitive skills and abilities and the
capability to benefit from training for the next succeeding
4
position.
According to the Hudson Institute's 1988 report Opportunity 2000,
more than half of all new jobs created over the next 20 years will
require some education beyond high school and almost a third will
be filled by college graduates (compared with only 22% of all
occupations today). Notwithstanding employers' ever increasing
dependence on individual competence in order to remain competitive,
students, parents and teachers will not be able to point to a
reward for learning if employers are for all practical purposes
precluded from even inquiring about degree status much less
rewarding academic achievement. As the Secretary of Labor's
Commission on Workforce Quality and Labor market Efficiency has
recently urged:
The business community should
show through their hiring
and promotion decisions that academic achievements will
be rewarded.
The need to encourage academic achievement by encouraging employers
to reward students who achieve academically will be met by the
Administration's definition of "business necessity" which is the
same as the definition adopted by the Supreme Court. The Danforth
bill's definition of "business necessity," focusing on job
performance, will in effect make use of educational credentials and
objective measures of academic achievement indefensible unless
quotas are also employed.
For fifteen months, I've maintained that we would not have an
acceptable civil rights bill until we aired the philosophical
differences between the Administration (back to merit hiring) and
the civil rights community (proportional representation in the
workplace). Lawyers could not write a satisfactory bill until
these very real philosophical differences were openly confronted.
As you know, Governor, I was deeply involved in the early
negotiations on the Americans With Disabilities Act (ADA). The
White House and disability community had few differences on
sections concerning employment, transportation, relay
communications for the deaf, or coverage of state and local
governments. The area of contention was public accommodations.
At that time, I told you the disability community wanted total
access: a "flat world" tomorrow. Because it was a question of
civil rights, the disability community did not believe there could
be a cost defense. You replied that it wasn't fair to place a
financial burden on small businesses that had no government
contracts or received no federal money.
You stated that the disability community's demand was not
reasonable and clearly against Republican Party philosophy.
Eventually both sides agreed to the "readily achievable" standard
for existing public facilities to ensure mainstream opportunities
5
for disabled people. The ADA negotiations were exemplary in that
both sides thoroughly discussed areas of philosophical
disagreement. Had we not done so, the ADA would never have become
law.
Hopefully the information I have provided will encourage additional
candor about these differing philosophies between the parties.
Unless the latest Danforth definition of "business necessity" is
rejected, when employers realize that they will be unable to defend
use of educational credentials and objective measures of academic
achievement under the Danforth bill, they will have little choice
but to revert to hiring by the numbers. For these reasons I urge
the Administration not agree to the Danforth compromise "business
necessity" language.
Best regards,
Evan
Evan J. Kemp, Jr.
Chairman
06/17/1991 15:19 FROM OFFICE of the CHAIRMAN
TO
94562397 P.02
ON SOCIETY
BY JOHN LEO
California's racial arithmetic
A
good many Washington commentators are con-
racial groups in direct proportion to their share of the
vinced that the quota debate is "Willie Horton
state's high-school graduates. This astonishing plan,
11," i.e., a basically irrelevant nonstarter that is
pushed by Assembly Speaker Willie Brown and ex-Fonda
nevertheless useful for distracting and inflaming impres-
husband Tom Hayden, is an explicit rejection of what
sionable voters. This seems to be yet another curious case
used to be called civil rights and affirmative action (open-
of that familiar Washington eye ailment known as inside-
ness, giving everyone an equal chance, removing obstacles
the-beitway myopia. In America, the large country just
to individual freedom and advancement). We are way be-
outside the Capital Beltway, quotas are a live issue in-
yond that. Now we are in the arena of group entitlements,
deed. Even if the Republicans should somehow manage
bringing the colleges under political control and dividing
to exorcise the spirit of Lee Atwater and shed all cynicism
up university degrees and jobs as part of a spoils system
and manipulation by noon tomorrow, quotas would still
run from Sacramento. Since the Democrats vote as a bloc
be a major issue in the 1992 elections.
on this, only the good fortune of a last-minute veto by a
On my desk is a minor example of the growing quota
retiring Republican governor saved California from this
mentality, a report to the U.S. Forest Service from its
quota plan last year, just as the likelihood of another veto
Task Force on Work Force Di-
by the current Republican gov-
versity. Twenty years ago a
- FOR USNEW
ernor, Pete Wilson, will save
report like this would sim-
the state this year or next.
ply have said, in effect,
To its great credit, Cali-
it isn't right for the
fornia has been deeply
service to be almost all
concerned for two de-
white and male; let's
cades with the low rate
open it up. But this re-
of college graduation
port, infected by cur-
among some minorities.
rent notions of multi-
The disheartening news
culturalism (there are
is that graduation rates
many cultures or tribes
for Hispanics and blacks
that have to be appeased
are still very low. With
as groups), says that by
frustration over this ris-
1995, the service "must
ing, the ideal of getting
have percentages in recog-
as many blacks and His-
nized groups equal to the percentages in the Civilian La-
panics as possible ready for college changed to the ideal of
bor Force in 1990." Quota time. Though momentarily
proportional representation in freshman admissions, then
stumped on what would be a proper quota for the dis-
to the ideal of graduating roughly equal numbers of each
abled, the report says, "We think the appropriate number
group and finally to Willie Brown's favorite kind of ideal,
will be about 5.9 percent." Yeah, that's about right.
one with legislative teeth.
The Forest Service says that this report, a wellspring of
The quota provision is in Willie Brown's bill. No. 2150,
odd but doctrinally correct multiculturalism, has been ac-
which has been temporarily shelved because of the bud-
cepted "in spirit." This probably means that the leader-
get crisis. Perhaps wisely, the bill is presented in a fog of
ship, being basically sane, will try to bury it if it can and
euphemisms. Proportional representation in admissions
just try to hire people from both sexes and all races. But
and graduation is "educational equity," described as a
here is the problem: To buy some peace, administrators
central priority that California universities "shall strive to
often tell the multiculture believers to go off and make a
approximate, by 2000." If that sounds like the soothing
report. When the report arrives, all thunder and light-
language of goals, not quotas, don't be fulled: The "shall
ning, it sometimes takes on a scary life of its own, raising
strive" is backed by tough provisions of reports, impact
so much fuss that administrators are tempted to buy
statements and the reminder that "governing boards shall
peace once again by adopting it, even if it involves quotas,
hold faculty and administrators accountable" for all this
or as in the case of schools, ceding control of the curricu-
legislated equity (i.e., their jobs are on the line). Since the
lum to various pressure groups. In the worst-case scenar-
bill neglects to provide funding for remedial help that
io. this report enters and then polarizes partisan politics,
unprepared minority students really need, I assume that if
with the Democrats trapped by angry constituents into
the bill passes, the universities would quickly capitulate
defending assorted zaniness and quotas, thus putting the
and grant as many worthless political degrees as the legis-
future of the party at risk.
lature wants. Even now, voices are being raised around
Diplomas of color. This is roughly the dynamic at work
the system that every student has a "right" to graduate
in California, where the most serious quota drama is cur-
and that a "privileged elite" (administrators and faculty)
rently being played out. In brief (and I am not making
is arbitrarily withholding a desirable good (automatic di-
this up), the Democratic majority in the state legislature
plomas) from "underrepresented minorities." This is the
is attempting to establish. by law, that California state
language of pork-barrel politics, not education. and that
universities and colleges will grant degrees to ethnic and
is what the Brown bill is all about.
U.S.NEWS & WORLD REPORT, 1991
21
,
1.
From:
EDWARD I. Koch
I thought you would be
interested in the enclosed.
All the best.
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN
1290 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10104
VINCENT ALFIERI
MICHAEL B. LEVY
(212) 541-2000
SCOTT L. BACH
JEFFREY H. KAPLAN
JAMES M. ALTMAN
HAROLD A. LUBELL
DAVID M. BARSE
DAVID S. KASDAN
ALAN J. B. ARONSOHN
JACK MANDEL
SUZANNE M. BERGER
DEBRA M. KENYON
STANLEY BERMAN
JONATHAN S. MARGOLIS
DAVID G. BLAIVAS
STEVEN D. BLOOM
THOMAS MOERS. MAYER
FACSIMILE: (212) 541-4630
STEVEN M. KORNBLAU
LISA BLOOM
JOHN C. MABIE
MICHAEL D. BUTTERMAN
STEVEN MONTEFORTE
RAND G. BOYERS
CHRISTINE C. MARSHALL
WALTER H. CURCHACK
ANDREW L. ODELL
DAVID A. CAHILL
MARGOT J. METZGER
JAY M. DORMAN
GRACE S. ONAGA
DAVID CALABRESE
SUSAN A. MOLDOVAN
BARTLEY F. FISHER
ALAN S. PEARCE
LESLIE W. CHERVOKAS
JUDY 1. PADOW
ERICA R. FORMAN
SAUL PEARCE
PATTI CIARAMELLA
LOWELL PETERSON
JAMES F. GILL
MICHAEL N. ROSEN
KAREN AU CLARO
JUDITH L. POLLER
STUART A. GORDON
BARRY C. ROSS
ERIC I COHEN
CRAIG L. REICHER
KENNETH L. HENDERSON
DAVID SCHULDER
LYNDA S. CORWIN
MARK D. RISK
MIRIAM O. HYMAN
ROBERT J. SORIN
ANNETTE FISCH
LEE J. ROSEN
ANDREW IRVING
LAURENCE A. SPELMAN
PETER J. FITZPATRICK
BRUCE M. RUBENSTEIN
SUSAN POWER JOHNSTON
JACQUELINE F. STEIN
KENNETH D. FREUNDLICH
ELLEN R. SABIN
EDWARD 1. KOCH
JULIUS B. SUCHER 1
STEPHANIE G. FRIED
STEVEN G. SCHEINFELD
CHARLES M. KOTICK
MARK JON SUGARMAN
AARON FRIEDMAN
KEITH E. SCHUTZMAN
MATTHEW J. LEEDS
ROBERT A. WOLF
RENEE E. FROST
KENNETH P. SINGLETON
JOEL A. LEVIN *
GEORGE B. YANKWITT
MARK V. GIORDANO
ALAN H. SOLARZ
SANDOR A. GREEN
STEVEN M. STIMELL
FLORIDA OFFICE:
SUSAN E. HART
SUSAN B. TEITELBAUM
DOUGLAS HELLER
MILDRED TROUILLOT
520 BRICKELL KEY DRIVE
VILIS R. INDE
CAREY WAGNER
MIAMI, FLORIDA 33131
NICHOLAS P. JACOWLEFF
SHERRY WAKSBAUM
(305) 374-3800
THOMAS T. JANOVER
SUSAN STOLL ZEDECK
FACSIMILE: (305) 374-1156
BEATRICE R. KAHN
MICHAEL R. ZIENTS
"ALSO ADMITTED IN FLORIDA
WRITER'S DIRECT NUMBER:
June 25, 1991
The Honorable Joe Biden
United States Senate
Washington, DC 20510-6275
Dear Joe:
You were really nice to continue our correspondence on H.R.1
even though we are on different tracks. You still believe that
the legislation does not encourage quotas and apparently will
co-sponsor it in the Senate. I am a firm believer in securing
the civil rights of all of our citizens, but not through the use
of reverse discrimination. I believe H.R.1 is a bill which
encourages racial, ethnic, religious and gender quotas and,
therefore, should be defeated.
There are legislative changes that are necessary as a result
of recent Supreme Court decisions, but H.R.1 does not solve most
of those problems. What it does do is pressure employers to fill
jobs on the basis of racial, ethnic, religious and gender
proportionality in order to avoid massive backpay and attorneys'
fees awards. The proponents never admit that they support quotas
and always refer to affirmative action in a way that would place
them on record as opposing quotas, even when they acknowledge
support of "goals, timetables and sanctions." Those words are
simply euphemisms for quotas.
What H.R.1 does, and regrettably the President's bill in the
spirit of compromise does the same, is to presume an employer
guilty of racial, ethnic, religious or gender discrimination when
his workforce statistically does not mirror the applicant
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN
2
workpool or the regional population in the particular job
category when plaintiffs allege discrimination based not on
intentional discrimination but on the "disparate outcome" of
testing or of the hiring practice. The burden of proof is then
shifted to the employer who must defend his hiring practices.
H.R.1 also effectively eliminates the plaintiff's requirement to
identify the practice causing the disparity and has a brand
new onerous definition of business necessity which exceeds the
definition in Griggs V. Duke Power (1971) and subsequent Supreme
Court cases. Faced with costly lawsuits, monetary damages and
negative publicity, employers will simply throw in the towel and
make certain their workforce reflects the "correct" racial,
ethnic, religious and gender profile, rather than hiring the best
person for the job.
I don't believe that President Bush, in introducing his bill
through Robert Michel (R-I1.), should have compromised on this
issue by including as he did the same presumption of guilt as
H.R.1, but at least his bill retains the two other safeguards
against quotas requiring the plaintiff to identify the
practice causing the discrimination and the Supreme Court's
20-year-old concept of business necessity.
Some suggest there should be compromise on both sides. I
suggest that fundamental positions of morality which we all have,
sometimes on different sides of the same issue, whether it be
with respect to abortion, the death penalty, gay rights, civil
liberties and civil rights, should not be compromised. Are there
many supporters of Roe V. Wade, who would agree to a compromise,
which opponents sometimes offer, to eliminate the right of
abortion on demand up to the second trimester except to save the
life of the mother, and in cases of rape, incest or gross fetal
defects? I doubt that you would vote for such a bill. And
certainly supporters of N.O.W. and many others would not. Would
you suggest that those who are opposed to the death penalty, as
for example New York Governor Mario Cuomo, give up their deeply
held position against it be agreeing to it but only in the case
of someone convicted of killing a police officer in the line of
duty? I doubt it.
There are those in the Congress and on the editorial pages
who have used the fact that both the Anti-Defamation League and
the American Jewish Congress supported H.R.1 as a shield to
criticism. However, subsequent to the bill's passage, both
groups have stated that H.R.1 does indeed have quota
implications, placing their ultimate support of H.R.1 in
question. One reason they take this position is that in an
effort by its sponsors to put themselves on record as opposed to
quotas, H.R.1 now contains language defining "quota" in such a
way as to inferentially protect quotas. How? By defining a
quota as requiring employers to take those who are not qualified
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN
3
for the job, and making that action illegal. That means that the
minimally qualified applicant of the "correct" race, ethnicity,
religion or gender needed to avoid lawsuits based on the
presumption of guilt and H.R.1's rewriting of the other elements
of disparate impact lawsuits would be hired rather than the best
applicant and that would be legal and a quota.
You should also know that after the House passed H.R.1, AJC
executive director Phil Baum issued a statement saying that "in
an effort to define quotas, the bill in its current form in fact
legalizes and institutionalizes quotas and other forms of race-
and sex-conscious employment practices which AJ Congress cannot
endorse. ADL took a similar position.
I believe H.R.1 is supported by some because they feel
nothing else has worked to end racial discrimination. In fact,
much has been accomplished in breaking down discrimination
against minorities and women, but much more can and should be
done to reduce and eliminate remaining discrimination. We can
point with pride to the fact that of the top ten cities in our
country half have been or currently are governed by a black
mayor. But I do not believe in engaging in reverse
discrimination to cure past or present discrimination except when
a specific individual can show that he or she was the subject of
discrimination in which case that individual should be given
preferential treatment to correct the prior discrimination.
"Race norming" which has been used by the federal government
for nearly 15 years allows testing applicants for jobs solely
within their own race or ethnicity and eliminates scoring the
entire applicant group with the same criteria. This practice
elevates minority applicants over white and Asian applicants
taking the same test and scoring higher. There is a bitterness
amongst many whites, who are 80% of the country's population,
which results from a feeling that their sons and daughters will
suffer reverse discrimination to atone for the earlier and
current discrimination practiced against blacks and Hispanics.
Many believe as I do that David Duke received 60% of the white
vote in Louisiana for U.S. Senate not because those voting for
him support the Ku Klux Klan, but rather because of their anger
against the Democratic party and its support of preferential
treatment and racial and ethnic quotas.
There are many who applaud Senator Kennedy for his
leadership in the fight for H.R.1. These same people attack
President Bush for his continued opposition to the legislation
which he believes encourages quotas and is antithetical to our
historical opposition to the use of such quotas. Shouldn't
President Bush be applauded for standing up for what he perceives
to be a matter of conscience?
ROBINSON SILVERMAN PEARCE ARONSOHN & BERMAN
4
The children of those who are wealthy, in political office
or have access to "networking" will always get jobs and will not
suffer the consequences of the reverse discrimination created by
the passage of H.R.1. The children of our working poor and
middle classes of every ethnic extraction including, but not
limited to, Irish, Italian and Jewish will see their sons and
daughters restricted in their opportunities. Ultimately, they
will have to accept that they will not rise in an occupation or
profession of their choosing based on their ability but rather
will be judged by the demographics of race, ethnicity, religion
and gender in employment in the private sector, in government and
at our universities. That is not the America that most of us,
including blacks, Hispanics and women who are the intended
beneficiaries of preferential treatment under H.R.1, have dreamed
of or been made cognizant of during our academic careers.
Enclosed is some additional material on the subject
including a statement I made before the American Jewish Committee
and various op-ed articles.
I have gone on at great length knowing that I will not
convince you, but I do believe that I have reasonably,
responsibly and accurately described what H.R.1 will do and have
staked out my position in opposition as a matter of conscience
which I will not compromise.
All the best.
Sincerely
Edward $ 1. Koch
EIK/mgl
enclosures
JOSEPH R. BIDEN, JR., DELAWARE, CHAIRMAN
EDWARD M. KENNEDY, MASSACHUSETTS
STROM THURMOND, SOUTH CAROLINA
HOWARD M. METZENBAUM, OHIO
ORRIN G. HATCH, UTAH
DENNIS DECONCINI, ARIZONA
ALAN K. SIMPSON, WYOMING
PATRICK J. LEAHY, VERMONT
CHARLES E. GRASSLEY, IOWA
HOWELL HEFLIN, ALABAMA
ARLEN SPECTER, PENNSYLVANIA
PAUL SIMON, ILLINOIS
HANK BROWN, COLORADO
United States Senate
HERBERT KOHL, WISCONSIN
RONALD A. KLAIN, CHIEF COUNSEL
JEFFREY J. PECK, STAFF DIRECTOR
COMMITTEE ON THE JUDICIARY
TERRY L. WOOTEN, MINORITY CHIEF COUNSEL
AND STAFF DIRECTOR
WASHINGTON, DC 20510-6275
June 11, 1991
The Honorable Edward I. Koch
1290 Avenue of the Americas
New York, New York 10104
Dear Ed:
Thank you for contacting me again about the Civil Rights
Act. H.R.1 is very similar to the civil rights legislation
passed during the 101st Congress. You may remember that I was a
cosponsor of that legislation, which would have restored
important civil rights protections.
As I mentioned in my previous letter, I carefully reviewed
the Civil Rights Act of 1990 and concluded that it would not
cause employers to adopt quotas. In addition, the House-passed
bill explicitly states that quotas are illegal.
Again, thank you for your letter. When H.R.1 is considered
by the Senate, I will closely examine it and certainly keep your
views in mind.
Sincerely,
Joseph R. Biden, Jr.
Chairman
SENT BY:HERITAGE FOUNDATION-1 ; 6-28-91 4:01PM ;
2025460904
2024562397;# 2
Heritage Foundation
A tax-exempt public policy research institute
June 28, 1991
John H. Sununu
Chief of Staff
The White House
Dear Governor Sununu:
I just wanted to give you a quick update on things, so you
don't think I abandoned you.
After examining Senator Danforth's three bills more closely,
I concluded:
(1) that under any interpretation of their language, the
bills still had substantial quota-promoting tendencies;
(2) that in several critical respects, however, the bills
were highly ambiguous; and therefore
(3) that the extent and degree of the remaining quota prob-
lems depended heavily on what certain provisions meant.
Based both on the ambiguity (which I attributed to sloppy drafts-
manship) and on the lingering quota problems, I was convinced
that Senator Danforth would have to make substantial changes in
the bills in order to make them accaptable to the President and
the American people. Therefore, my supervisors and I felt that
it made more sense, under the circumstances, for us to conserve
our ammunition and wait to see what Danforth comes up with next.
In the mean time, I have kept in regular contact with Nelson
Lund in the White House Counsel's Office. When we spoke Tuesday
evening a couple of days ago, he told me that there had been a
fairly favorable meeting with Danforth in which the Senator had
been fairly receptive to at least one change suggested by the
Administration and had indicated that he would be making other
changes in the bills 18 well. I don't know any of the details of
Edwis J. Foulner, Jr., President
Phillip N, Truluck, Executive Vice Prevident
Burton Yale Pines, Senior Vice President
Herber: B. Barkowin, Vice President
Charles L. Heacherly, Via Prevident
Kate Walsh O'Betrne, Vice President
Pater & 3. Pover, Via President
Terrence Scanlon, Vice President and Transurer
Bernard Lomes, Commoler
Board of Trustees
David R. Brown, M.D.
Hon. Shelby Cullom Davis, Chairman
Thomas A. Roe
Joseph Coan
Rebert H. Krisble, Ph.D., Via Chairman
Richard M. Scaife
Midge Dector
J. Prederic Reach, Summary
Hon. Prank Shakespoure
Edwis J. Foulner, Jr.
Lewis E. Lahrman
Hon. William E. Stroon
Joseph R. Keys
J. William Middenderf, II
Juy Van Andal
214 Massachusetts Avenue, N.E. Washington, D.C. 20002-4999 0 (202) 546-4400
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what was discussed, and I don't know what changes the Senator has
in mind or whether they would be changes suggested by you or by
Senator Kennedy, but it would appear that our decision to hold
our fire has been vindicated, at least for now. Nelson and, I
believe, Boyden both agree that it would be better at this stage
for me not to attack Danforth's initial versions for being the
quota bills that they are, but instead to wait and see what he
comes up with next, and whether he moves more in Ted Kennedy's
direction or in yours. I will continue to stay in contact with
Nelson, and I will be prepared to turn out a short paper on Sena-
tor Danforth's revised versions (depending of course on what they
say) as soon as they become available.
In the mean time, I will be writing on another matter which
also merits your personal attention -- Senator Glenn's attack on
OIRA. I assume you are already familiar with this subject. This
attack threatens one of the most important protections of indivi-
dual liberty built into the Constitution by our founding fathers
-- the separation of powers. At issue is nothing less than the
President's right to control the Executive Branch of government
and to direct the actions of his subordinates.
Under the first sentence of Article II, subordinate officers
have no independent standing or authority, they are merely agents
of the President, and they enjoy only such authority as the Pres-
ident chooses to delegate to them. Senator Glenn's bill would
severely compromise (at least indirectly) the President's ability
to control his subordinate officers by requiring them to submit
the regulations they promulgate to review by OMB prior to promul-
gation. Moreover, by holding nominees hostage unless the Presi-
dent agrees to support his bill, Senator Glenn commits a form of
constitutional extortion which represents a further threat to the
principle of separation of powers. Therefore, I hope that when
the time comes for the Administration to take a position on this
matter, you will advise the President not to give in to this
attempted extortion but instead to defend the legitimate consti-
tutional prerogatives of his office and to oppose Senator Glenn's
evil bill. (I guess you can tell I have strong views on this
subject.)
sincerely yours,
Bill
William G. Laffer III
McKenna Fellow in Regulatory
and Business Affairs
P.S. Illegitimi non carborundum, of course.
To: BARRARA, 600C
TR: SHARLIEN MATWELL MACMILLAN
mone-301/816-3696
Chief of Employment Commission
Criticizes G.O.P. Bill on Job Bias
By STEVEN A. HOLMES
(posial no The New York Twom
6.25.91
WASHINGTON, June 24 The
tion Inwausts.
chairman of the Equal Employment
As head of the Equal Employment
Opportunity Commission today urged
Opportunity Commission, Mr. Kemp is
the White House to reject compromise
charged with the enforcement of Fed-
civil rights bills fashioned by moderate
oral employment discrimination laws,
Republicans.
but to date he has sat on the sidelines
In I letter to John H. Sununu, the
during the heared debates over the
White House chief of staff, Evan 1.
Kamp, hand of the commission, said
measure, Steve Hilton. a spokesman for Mr.
the compromise would make It "ax-
Danforth, said the Senstor had not seen
TA
tremely difficult for employers to use
Mr. Kemp's letter and therefore would
educational credentials and objective
not be able to comment on 16
measures of academic achievement
A version of the civil rights bill sup-
Ba
like tests to determine who to hire or
ported by the House Democratic lead.
promote 1Mr. Kemp said precluding such ert-
БО
teris in employment decisions would
undermine President Bush's efforts to
A White House 198
improve the educational achievements
of students and therefore make it more
difficult for American businesses to
official opposes
a
compete
moderate
"Notwithstanding employers' over
I
increasing dependence on individual
competence in order to remain com-
Republicans.
petitive. students, parents and teachers
30
will not be able to point to a reward for
learning If employers are for all practi-
cal purposes precluded from even m-
ership was approved by the House
H
quiring about degree status, much loss
June 5 by 1 margin that was 17 votes
rewarding academic achievement,
short of what would be required to
Mr. Kemp wrote in the letter, I copy of
override a Presidential veta.
9H
Democratic leaders in the Benate are
which was provided by an Administra.
tion official on the promise of anonymi-
reluctant to bring that measure to a
vote, and are hoping that a compre-
Я
ty.
miss could be worked out that would
First Benior Opposition
secure White House support.
Mr. Kemp's letter marks the first
Backers of the civil rights bill are
I
time any senior official within the Bush
seeking to overturn a series of 1980 Su-
Administration has voiced outright op-
preme Court decisions that made it
JI
position to the compromise measures
harder to sue and collect damages in
drafted by Senator John c. Denforth,
job discrimination cases. They are also
Republican of Missouri.
seeking to increase the financial penal-
04
It is not clear whether Mr. Kemp's
use employers would pay if they are
letter presaged a formal Administra-
found to have discriminated Intention-
cion announcement upposing Mr. Dan-
ally against women.
VI
forth's measure or If It indicated a split
Mr. Kemp's letter underscores the
within the Administration over
main philosophical difference between
M
whether to accept to Missouri Republi-
supporters of both the Democrate' bill
can's compromise.
and Mr. Denforth's compromise and
When asked about the Denforth pro-
their opponents within the Administra-
M
posals two weeks ago, Mr. Bush was
tion, including C. Boyden Gray, the
non-committal, saying, "Our people
White House counsel.
are taking a hard look at them, More
According to the letter, Mr. Kemp be
19
recently he said be had reservations
laives that Federal employment law as
about them.
practiced during the last 20 years has
The letter was the first time Mr.
fallen out of step with the current do.
Я
Kemp has indicated his views on any
mands of the economy. In 1971, the Bu-
varaion of the civil rights legislation,
preme Court that criteris for hiring
and promotions Hks requiring & high
#
which has become embrolled in a de-
bate over whether it would compel em-
school diploma or 1 college degree
players to adopt hiring and promotion
must be directly relevent to the job to W
quotes in order to avoid job discrimina.
THE WHITE HOUSE
WASHINGTON
6/17
TO:
John Suncernal
FROM: FRED McCLURE 7m
Assistant to the President
for Legislative Affairs
FYI
Comment
Action
attached is the Labor
Policy association analysis
compaisons. of Danforth with some
7red
Special Memorandum
MEMORANDUM
June 6, 1991
91-121S
TO: Key Federal Policy Makers
RE: The Danforth Civil Rights Proposals
As the House was taking up H.R. 1, the 1991 civil rights amendments, Senator
Danforth along with eight other moderate Republicans introduced an alternative divided
up into three separate bills.
The Danforth bills-S. 1207, S. 1208 and S. 1209-represent the latest in a series of
Republican attempts to reach consensus on civil rights. The other measures are the
Administration's proposal (S. 611) and ones offered by Senator Simpson (S. 478) and
Senator Dole (S. 472). Thus far, no Democratic Senator has introduced a civil rights bill.
Enclosed are fact sheets providing our analysis of the three Danforth proposals.
Labor Policy Association, Inc. 1015 Fifteenth Street. NW Washington, DC 20005 Telephone 202-789-8670 Fax 202-789-0064
SHEET
June 6, 1991
91-121
S. 1207, Senator Danforth's Civil Rights Alternative
Reversing Numerous Supreme Court Decisions
On June 4, 1991, Senator Danforth introduced three proposed civil rights bills as
substitutes for H.R. 1. His S. 1207 reverses several Supreme Court civil rights decisions
and toughens Title VII. The controversial issues of disparate impact and damages are
addressed separately by the other two bills.
Patterson V. McLean Credit (Employment Contracts) Amends 42 USC Sec. 1981 to
prohibit race discrimination beyond the formation or enforcement of an employment
contract. Section 1981 thus would cover all terms and conditions of employment as well as
on-the-job harassment. Both H.R. 1 and the Administration's bill reverse Patterson.
Price Waterhouse V. Hopkins (Mixed Motive Cases) Like H.R. 1, S. 1207 establishes a
violation if race, sex, etc., was a "motivating" factor in making an employment decision. If
the respondent proves it would have taken the same action in the absence of
discrimination, the court can grant declaratory and injunctive relief, unlimited attorney fees
(the main aim of this provision) and costs. Unlike H.R. 1, the court could not award
damages or order hiring or reinstatement.
By definition, affirmative action uses race or sex as a "motivating factor" in
employment decisions. Employers who use voluntary action or comply with Executive
Order 11246 run the risk of having their actions declared illegal, enjoined, and paying
attorney fees. S. 1207's language protecting affirmative action may protect only "court-
ordered"-not voluntary-efforts.
Martin V. Wilks (Finality of Consent Decrees) Establishes ground rules for challenges to
consent decrees. No challenge would be allowed if, before entry of the decree, the person
knew of the decree and had a reasonable opportunity to object, or was represented by
someone else who adequately protected his rights.
Lorance V. AT&T (Challenges to Seniority Systems) Allows plaintiffs to attack a seniority
system not only when the system is adopted, but also when the individual becomes subject
to the system or injured by its application. If the plaintiff alleges that the practice was
adopted for an intentionally discriminatory purpose, then an unlawful employment practice
occurs. Enactment of this language would mark a new era in American jurisprudence. It
would make the plaintiff's allegation, rather than proof of the employer's intent,
determinative of whether a violation has occurred.
Labor Policy Association. Inc.
1015 F tteenth Street. NW
Washington, DC 20005
Telephone 202-789-8670
Fax 202-789-0064
Expert Fees Like H.R.1, this section allows unlimited expert witness fees. The
Administration bill limits such fees to $300 per day.
Alternative Dispute Resolution Lifted from H.R. 1, this provision encourages alternative
dispute resolution techniques to resolve disputes. The House Committee reports indicate
that these alternative methods would not stop an individual who receives an unfavorable
arbitration award from having a second bite at the apple through a Title VII suit. In place
of lawsuits, the Administration's bill encourages alternative procedures, including binding
arbitration that is "knowingly and voluntarily agreed to by the parties."
Congressional Coverage While purportedly requiring Congress to live with the same
rules it imposes on the private sector, in fact Congress will continue to act as judge in its
own cases under S. 1207. The Administration bill, in contrast, would allow private suits to
be filed in court against Congress.
Effective Date The bill is effective on the date of enactment, but contains no language
clarifying that it is not retroactive. Indeed, past Senate interpretations indicate that the
changes would apply retroactively to any cases pending on the date of enactment.
LPA
FACT SHEET
June 6, 1991
91-122
S. 1208, Senator Danforth's
Disparate Impact/Business Necessity Civil Rights Alternative
S. 1208 is the second of Sen. Danforth's three substitutes to H.R. 1. The bill addresses the
standards used to litigate disparate impact (numbers-based statistical) discrimination cases
against companies. At issue in the civil rights debate is whether statistics alone would be
sufficient to get a disparate impact case into court, and how the employer's defense of "business
necessity" against that statistical case would be defined.
Disparate Impact Cases The Administration's bill allows a plaintiff to bring a statistical case
by (1) alleging "bad" numbers, (2) requiring the plaintiff to point to the specific practice or
practices that caused the bad numbers and (3) allowing the defendant to justify the challenged
practice.
"Grouping of Practices" Requiring the plaintiff to specify and prove which practices caused
disparate impact individually was the majority appellate rule before Wards Cove. The
Danforth bill would reverse this requirement. Danforth would not require a plaintiff to prove
that each practice caused an impact. All a plaintiff has to do is "identify with particularity each
practice that is responsible in whole or significant part for the disparate impact." Thus, all the
plaintiff must do is list the employer's various practices (e.g., test, interview, education
requirement, experience) and this minimal requirement for getting into court is met.
The phrase-"in whole or significant part"-should not be construed to require a showing of
causation. This language came out of last year's negotiations between Senator Hatch and the
bill's proponents, and was included in the second Conference bill that was vetoed. The second
Conference Report stated that a practice was assumed to satisfy this requirement unless the
practice made only a "trivial or insubstantial contribution to the disparate impact." Under this
definition, any practice with more than a trivial impact on minorities or women would have to
go to trial and be justified by business necessity. The practical effect of S. 1208 would be as
burdensome on employers as the present language of H.R. 1.
Even more, the plaintiff can avoid this "listing" requirement by stating "after discovery" that
the "elements of the employer's decisionmaking process are not capable of separation for
analysis." This is a clear invitation to plaintiffs to file a lawsuit whenever a numerical imbalance
is present in the workforce, and launch a burdensome process to see if a lawsuit should have
been filed in the first place. Again, employers will be encouraged to have a balanced workforce
to avoid this expense.
Thus, the Danforth proposal has the same result as H.R. 1-it allows the plaintiff to attack a
group of practices without having to show that any of the practices caused a disparate impact.
A plaintiff could now get into court by simply alleging bad numbers and asserting that the listed
Labor Policy Association, Inc.
1015 Fifteenth Street, NW, Washington, DC 20005
Telephone: 202 789-8670
practices, lumped together, were responsible for the bad numbers. Merely listing practices is a
far cry from having to prove which specific practice caused a disparate impact.
Business Necessity Definition At issue in the debate over business necessity is whether
employers will be able to continue defending themselves against "bad" numbers by showing the
disparity is caused by legitimate business reasons that are not a pretext for discrimination.
Business Necessity-Nonselection Practices The Danforth bill has an excellent definition of
business necessity for employment decisions not involving employment selection
practices-"manifest relationship to a legitimate business objective of the employer." The
problem is, can you think of many employment decisions that do not involve the selection of
one person over another? Decisions regarding hiring, firing, promotion, demotion, layoff,
reassignment, and relocation are all selection practices. Thus, enactment of this excellent
language would be of no practical or legal consequence.
Business Necessity-Selection Practices With respect to selection practices, the Danforth
proposal does not "restore" pre- Wards Cove law and, contains the same problem as H.R. 1. It
ties business necessity to "the requirements for effective job performance." This definition is
different and stricter than Griggs and, more fundamentally, bars companies from explaining
disparities with evidence of legitimate business objectives that are not being used as an excuse
to discriminate. Companies are run, not on the basis of whether employees can perform jobs
effectively, but on whether there is a job that makes economic sense to be performed.
Enactment of this language would seriously undermine the ability that employers have under
existing law, and would have under the Administration's bill, to rebut accusations of bad
numbers with legitimate business reasons.
Alternative Practices If an employer somehow meets the Danforth burden of proving business
necessity, the plaintiff still can win by proving that a different practice or group of practices
would serve the respondent as well and make more than a "negligible" difference in the impact.
Like H.R. 1, the Danforth bill reverses the Supreme Court's Albemarle Paper decision, which
treated such a showing as "evidence," rather than final proof, of discrimination. The Danforth
bill also leaves out the Administration's requirement that the alternative be "comparable in
cost" to the employer.
Race Norming Danforth prohibits an employer, a private employment agency, or a state
employment agency from using race, sex, etc., as a basis for adjusting, altering, or using
different cutoff scores. The bill, however, states that this prohibition does not apply to a
respondent seeking to comply with a court order aimed at remedying past discrimination.
Thus, race norming could be used in a consent decree, court-approved settlement or in a court-
ordered remedy after trial.
Effective Date The bill contains no provision specifying an effective date, thus leaving open the
question of retroactive application.
Conclusion As explained above, S. 1208 may have different language than H.R. 1, but it is
virtually indistinguishable in practical effect. Like the myriad "compromises" that preceded it,
S. 1208 merely rewords H.R. 1 while leaving intact its underlying intent.
FACT SHEET
June 6, 1991
91-123
S. 1209, Senator Danforth's
Civil Rights Alternative On Damages and Penalties
In addition to back pay, the Danforth bill proposes a total of $300,000 per plaintiff
for nonpecuniary damages and penalties for companies with 100 or more employees, and
$100,000 per plaintiff for those with less. No limit is placed on damages for pecuniary
losses which means the sum total of damages and penalties could be substantially higher
than $300,000. These provisions would apply to discrimination cases under Title VII of the
Civil Rights Act and the Americans with Disabilities Act (ADA). The Administration, in
contrast, proposes a single equitable remedy-no more than $150,000 in addition to back
pay and limited to Tile VII harassment cases.
Compensatory Damages As under H.R. 1, all victims of any intentional ADA or Title
VII discrimination would be provided a jury trial to receive compensatory damages. The
standard of proof would be clear and convincing evidence. The jury would decide both
factual liability issues and the amount of damages. Like H.R. 1, persons eligible for these
damages would include class members in purely statistical (pattern or practice) cases
alleging intentional discrimination. Compensatory damages could be given not only for
pecuniary loses, but also for nonpecuniary losses such as "emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses."
Limitations on Compensatory Damages Awards Compensatory damages would be in
addition to back pay. Up to $150,000 in nonpecuniary losses per plaintiff could be
awarded against employers with more than 100 employees, and smaller employers could be
made to pay up to $50,000 per plaintiff. The bill contains no limitation for compensatory
damages for pecuniary losses. In deciding the amount of damages, the bill bars the court
from informing the jury of these limitations.
Equitable Penalty S. 1209 also provides a penalty that can be assessed in addition to
compensatory damages. Senator Danforth stated that "like punitive damages," this penalty
is intended to exact a price for wrong conduct and to discourage such conduct by others.
Like H.R. 1, the penalty is awarded if the employer has acted "with malice or reckless
indifference to the federally protected rights of an aggrieved individual." Note that this
could apply to rights beyond Title VII, such as the ADEA, IRCA, OSHA, or FLSA.
The same caps apply as with compensatory damages-$150,000 per plaintiff for
companies with 100 employees or more, $50,000 per plaintiff for those with less. The
award must be sufficient to deter the employer from similar future acts. A number of
equitable factors would be considered including: the nature of the offense; employer EEO
training; affirmative action efforts; available internal grievance procedures; employer
investigation; and the size of the employer.
Labor Policy Association, Inc.
1015 Fifteenth Street, NW
Washington, DC 20005
Telephone 202-789-8670
Fax 202-789-0064
Penalty Uses The plaintiff would not receive any of the penalty award. The court could
spend it on measures to correct the company's discriminatory practices, such as public
awareness and education programs. Or the court can put all or part of the award into a
federally-administered trust fund used carry out the purposes of Title VII or the Family
Violence Prevention and Services Act (but not apparently the ADA).
Effective Date There is no effective date in S. 1209, thus leaving for litigation the question
of whether it applies retroactively.
DEFINITION OF BUSINESS NECESSITY
OPTION A
The term "required by business necessity" means--
(1) in the case of employment practices that are used to
measure ability to do the job, the challenged practice must bear
a manifest relationship to the employment in question.
(2) in the case of employment practices not described in (1)
above, the challenged practice must bear a manifest relationship
to a legitimate business objective of the employer.
The term "employment in question" includes, but is not limited
to-- (1) the performance of actual work activities required by
the employer for a job or class jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
OPTION B
The term "required by business necessity" means--
the challenged practice must bear a manifest relationship to the
employment in question.
(1) in the case of employment practices used to measure
ability to do the job, the term "employment in question" means
job performance.
(2) in the case of employment practices not described in
paragraph (1), the term "employment in question" means a
legitimate business objective of the employer.
The term "job performance" includes, but is not limited to--
(1) the performance of actual work activities required by
the employer for a job or class of jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
06/25/1991 15:21 FROM OFFICE of the CHAIRMAN
TO
94562397 P.01
WASHINGTON, D.C. 20307
OFFICE or
THE CHAIRMAN
TELECOPIER TRANSMITTAL SHEET
DATE:
June 25, 1991
TIME:
4:25 D.D.
NUMBER OF PAGES + COVER SHEET
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TO
:
Governor John H. Sununu
OFFICE
:
Chief of Staff to the President
ROOM
:
REMARKS
:
See circle for how far we have gone toward
preferences (and/or confusion) in our society.
FROM
:
Evan J. Kemp, Jr., Chairman
OFFICE
:
OFFICE OF THE CHAIRMAN
PHONE NUMBER
:
663-4001
FAX NUMBER
:
663-4110
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94562397 P.02
cent women in the corps and less than 2 percent at the
senior officer grades. According to former female FSOS,
most of the women who were employed by the Foreign
Service were secretaries or wives of male officers, and
the few women FSOS who remained were treated like
secretaries and assigned to administrative, clerical,
desk, and support duties "appropriate to women's nur-
turing instincts," as one woman was told. In FSO par-
lance, males were more often rated higher and given
"stretch" (above their grade level of experience) as-
NEW THE REPUBLIC
signments while women were given "downstretch."
0 counter both overt and subtle forms of dis-
T
crimination, roughly two dozen FSQ women
JULY 1, 1991
banded together in 1970 to form the Women's
Action Organization. WAO worked through de-
partmental task forces and ad hoc committees to lobby
for changes. By 1974 State had finally removed the
ban on marriage and began to train more women for
senior-level positions, to discourage women who were
contemplating resignation, and to reinstate many who
had been forced to resign because of marriage. This
increased the number of women FSO generalists from
149 to 234. But WAO believed the pace of change was
too slow to ever bring about its goal of 50 percent rep-
resentation of women in the Foreign Service. So in
1976 nine members filed a sex discrimination suit that
Quotas in the State Department.
challenged virtually all of the hiring, assignment, evalu-
ation, and promotion practices of the FSO.
The suit took nine years to come to trial. In the
meantime the State Department, concerned with bad
publicity and the chance that it would lose control of
GENDER NORMING
its hiring and personnel, launched a systematic drive to
recruit women through women's colleges, independent
women's groups like the League of Women Voters, and
advertising in women's magazines such as Cosmopolitan,
Woman's World, and Ms. The female registration rate
By James Workman
rose to 30 percent within three years of the lawsuit. But
inevitably the pool of women applicants so recruited
y now you probably never want to read the word
was dramatically different from the men and women
B
quota again. You've heard of race norming. the
who applied on their own. According to Educational
Labor Department practice of adjusting minor-
Testing Service records, before the lawsuit most of the
ities' test scores to enhance their chances of
successful female applicants held graduate degrees in
getting jobs over whites. But you may not have heard of
international studies, political science, philosophy, lin-
the newest play on this debate: gender norming. Once
guistics, or government. More of the women now apply-
again, it takes place under the very auspices of those
ing have undergraduate degrees in fields like English,
who would claim to spurn it: in the Reagan and Bush
art history, and literature.
administrations' State Department. Women are getting
As a result, a lower percentage of female applicants
a significant advantage over men in the testing, hiring,
were passing the grueling Foreign Service exam than
and assignment of Foreign Service Officers.
before the recruiting effort began. The State Depart-
For decades the State Department engaged in what
ment also began exhibiting more concern about its mi-
would now be rightly considered outrageous and un-
nority applicants, who were passing at a rate of only
conscionable discrimination against women. Until the
7 percent, as opposed to the non-minority pass rate of
mid-1970s female foreign service officers had to resign
15 percent. So State began to tinker with the exam
when they got married. Because the job was considered
itself. Since the 1940s there had been five parts to the
masculine, few women bothered to apply for it anyway:
application process: an English Expression test of read-
each year less than 7 percent of the successful appli-
ing comprehension, grammar. usage. and communica-
cants were women. Because of the marriage policy,
tion skills; a three-hour General Background test of
among other reasons, many women dropped out dur-
broad knowledge of world history, geography, culture.
ing the course of their careers, which left only 4.7 per-
politics, and physics; and a Functional Field test indi-
16 THE NEW REPUBLIC JULY 1, 1991
06/25/1991 15:22 FROM OFFICE of the CHAIRMAN
TO
94562397 P.03
cating which job track, or "cone," best suited the indi-
tween the scores of men and women. Although State
vidual's strengths: administrative, consular, economic,
had passed 498 women who fell into the near-pass cate-
or political. These were followed by a foreign language
gory after the 1985, 1986, and 1987 exams, women
aptitude test. The cut-off score was 70. Applicants who
were still not scoring as high as men. This is not unusu-
passed went on to an oral assessment stage. The pro-
al in standardized testing: from LSATS to MCATs to col-
cess winnowed more than 15,000 applicants to an elite
lege boards, women statistically score lower than men.
group of 250 appointees.
Nevertheless, Wald ruled that the State Department
Because exam records showed the foreign language
had to come up with a process that would advance an
test hurt the chances of minority applicants, by the late
equal proportion of women through each stage of the
1960s it was eliminated. But that change, in turn, hurt
program, from the written exam up through assign-
female applicants in general, who typically passed the
ments, performance evaluations, and, eventually, pro-
foreign language test at a higher rate than men. To
motions.
compensate, in 1977 the department began to weight
The problem for the State Department and the lower
the English test (in which women performed better
court was how to do this without resorting to legally
than men) disproportionately over the Background,
questionable quotas. In January 1989 a two-part solu-
60 percent to 40. But that subsequently hurt minority
tion was reached by Judge Aubrey Robinson. who or-
males, who were weaker than other populations in En-
dered that for the 1985-87 exams, the Department
glish skills. So in 1979 the department created a "near
must disregard the General Background and Function-
pass" category for minority applicants. This meant that
al Field sections and pass applicants only according to
the passing score of 70 no longer applied to minorities
English Expression scores.
who, according to testing personnel, have been passed
with scores in the mid-50s.
n addition, the scoring on future exams would be
The disproportionate weighting of the English test
still wasn't passing the right number of women, so the
I
dramatically adjusted. Whereas in the past the de-
partment administratively decided that women
department began to alter test questions. ETS began to
with raw exam scores a few points lower than men
recycle questions on which women did better than
would be passed through to the next stage, now the
men, according to a 1981 progress report compiled by
department has simply substituted percentile scores-
ETS and State. In a partial settlement with WAO in 1983,
separately computed for men and women-for raw
the pressure to gender norm came to a head. State
scores. In the words of the document explaining this
agreed to implement the same "near pass" mechanism
(which had to be obtained from an unofficial source
for selection of women as it had with minorities. Wom-
after the court and both parties to the lawsuit balked at
en who scored 1 to 4 points below the passing score
providing it), the State Department decided to "devise
were waved through to the next stage, thereby ensuring
scoring procedures which will ensure no disparate im-
that equal proportions of male and female applicants
pact on women before the initial scoring of the examina-
would pass.
tion." (Emphasis mine.) The department does this by
creating separate rank order lists based on raw examination
n 1985. meanwhile, the lawsuit finally came to trial.
scores for men and women. An equal percentage of males
I
The plaintiffs initially argued that female FSOS were
and females would be identified from each rank order list
individually discriminated against. For example,
as test passers. Candidates who have thus passed the written
examination will receive a percentile score derived from
one of the women who testified failed the written
their position on their own rank order list. This will mean
examination on eight occasions between 1962 and 1977.
that the highest scoring man and the highest scoring wom-
She eventually passed the written exam, only to fail the
an will each receive the same percentile score, as will any
oral stages in 1978, 1980. and 1981. This could mean she
pair of men and women who hold the same relative posi-
tion on their own rank order list.
was discriminated against, but it could also mean that
though this woman was admirably determined, she was,
The numbers have been made equal, in other words,
like roughly 14,750 other applicants each year, just not
but what they measure has not. This is classic "norm-
as good as the top 250 who made the cut.
ing," and the difference between it and a simple quota
After months of trial hearings, District Court Judge
is a question for semanticists or theologians, not ordi-
John Lewis Smith II, on September 13, 1985. found no
nary mortals.
evidence of personal discrimination, and ruled for the
Nobody knows what effect, if any, all this will have on
State Department on every major count. The plaintiffs
the quality of the Foreign Service. But the new dispen-
immediately appealed. brought the case before a U.S.
sation means that nowadays a person (male or female)
Court of Appeals panel. and shifted their focus from
can be appointed to the most prestigious international
individual discrimination to the correction of statistical
branch of the U.S. government career service regard-
imbalances. On March 24, 1987, Judge Patricia Wald,
less of his or her ability to answer written questions
widely considered the federal court system's leading
about foreign policy. as long as he or she knows where
liberal, overturned Smith's ruling. Despite all the pro-
to place a semicolon. Old prejudices and injustices
cedural efforts State had made over the last decade,
have indeed been overcome, but women FSOS may now
Wald based her decision almost entirely on the final
have to face a new prejudice, an assumption that they
outcomes, finding that discrepancies still existed be-
are less qualified than their male colleagues.
18 THE NEW REPUBLIC JULY 1, 1991
SENT BY:Xerox Telecopier 7020 6-28-91 17:52
2024566221-> LEGISLATIVE AFFAIRS:# 1
Hnited States Senate
copy photo
June 28, 1991
The White House
1600 Pennsylvania Ave.
N.W.
Washington D.C.
Dear Mr. President:
We are writing to express our deep concern about reports in
today's media implying that our colleague, senator Jack Denforth,
did not Aub in good faith with regard to M recent proposal on
civil rights legislation offered by Administration officials.
An members of the working group of Senators trying to craft
a compromise civil rights measure, we want to clarify the
apparent misunderstanding regarding the Administration proposal
on the "business necessity" standard, We considered the proposal
and as a group agreed to take it to the Democrate for review (and
hopefully for their approval), and then reanalyze the situation
in light of their comments. At no time during this process did
we have an agreement to accept the White House language.
There can be no question that Jack Danforth is a man of the
highest personal integrity. It distresses us to see what appears
to be a miscommunication erroneously cast in terms of Senator
Danforth's personal integrity. We would hope that this uncalled
for challenge to our colleague's integrity will not affect the
prospects for compromise legislation.
We want to give you our personal assurances that each of the
nine Republicans involved in these discussions has been operating
in good faith, and that our common goal is and always has been to
find a means to the end we know you desire: the enactment of &
fair and aquitable civil rights bill,
We stand ready to discuss this matter with you at any time.
Sincerely,
John 1+Chafee
Waryen Rusman
Date Demenici
Arlen Specier
Mark 0. Hatfield
Dave Durenberger
William Cohen
(1) in the capahly? case of employment practices used to measure
job qualifications or ability to do the job, the term
"employment in question" means job performance.
(2) in the case of employment practices not described in
paragraph (1), the term "employment in question" means a
legitimate business objective of the employer.
The term "job performance" includes--
(1) the performance of actual work activities required
by the employer for a job or class of jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
PROPOSAL SENT TO DOJ 6/24
DANFORTH PROPOSAL
The term "required by business necessity" means--
(1) in the case of employment practices primarily
measuring qualifications for or ability to do the job, the
challenged practice must bear a manifest relationship to the
requirements for effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
DOLE STAFF RECOMMENDATION
(comot arcent become of
subsective standard
The term "required by business necessity" means--
(1) in the case of practices that are used by the
employer because they are relevant to job performance, the
challenged practice must bear a manifest relationship to the
requirements for effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
DOLE STAFF RECOMMENDATION MODIFIED
The term "required by business necessity" means-
(1) in the case of practices that are used as conditions
of employment in or transfer to jobs, the challenged practice
must bear a manifest relationship to the requirements for
effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
DEFINITION OF BUSINESS NECESSITY
LANGUAGE OF S. 1208
The term "required by business necessity" means--
(1) in the case of employment practices involving
selection, that the practice or group of practices bears a
manifest relationship to the requirements for effective job
performance; and
(2) in the case of other employment decisions not
involving employment selection practices as described in
paragraph (1), the practice or group of practices bears a
manifest relationship to a legitimate business objective of
the employer.
The term "requirements for effective job performance"
includes--
(1) the ability to perform competently the actual work
activities lawfully required by the employer for an
employment position; and
(2) any other lawful requirement, that is important to
the performance of the job, including, but not limited to,
factors such as punctuality, attendance, a willingness to
avoid engaging in misconduct or insubordination, not having a
work history demonstrating unreasonable job turnover, and not
engaging in conduct or activity that improperly interferes
with the performance of work by others.
to measure ability todo thejob,
perform.
OPTION A
The term "required by business necessity" means--
(1) in the case of employment practices that are used as
conditions of employment in or transfer to jobs, the
6
challenged practice must bear a manifest relationship to the
take
employment in question.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
but mothinited to
The term "employment in question" includes---
(1) the performance of actual work activities required
by the employer for a job or class of jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
OPTION B
The term "required by business necessity" means--
the challenged practice must bear a manifest
relationship to the employment in question.
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
03. Memo
From Frederick McClure to John Sununu
6/27/91
P-5
Re: Danforth Press Conference (1 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff, White House Office of
Series:
Sununu, John, Files
Subseries:
Issues Files
Open on Expiration of PRA
WHORM Cat.:
(Document Follows)
By
File Location:
Civil Rights (2 of 2) 1991 [2]
JP
(NLGB) on 10/28/0
Date Closed:
1/3/2005
OA/ID Number:
29146-008
FOIA/SYS Case #:
1998-0004-F[2]
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed. of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
P.RM. Removed as a personal record misfile
THE WHITE HOUSEY HAS SEEN
WASHINGTON
Sand , Bayden
June 27, 1991
MEMORANDUM TO GOVERNOR SUNUNU
THE CHIEF of STAFF
FROM:
Shawn Smeallie Alpan Small
has seen
THROUGH:
Fred McClure 1m
SUBJECT:
Danforth Press Conference
At 4:30pm today, Senator Danforth announced that he will
introduce legislation that will make 22 changes to his original
bills that the Administration requested. It also includes a
modification to your language on business necessity. He said
that he felt compelled to introduce legislation since the
Administration said that there "was no further room for
negotiation."
Danforth is the only cosponsor thus far. He said that
Senators Rudman and Domenici are not expected to cosponsor
because they want to continue to negotiate with the
Administration. Danforth stressed, however, that he and the
original eight cosponsors are still unified in purpose.
(Danforth was asked whether you really wanted a civil rights
bill, to which he replied he believed you did. He also denied
charges that he reneged on agreeing to your language.)
Danforth sought me out after the press conference to tell me
that if you accepted his changes to your "business necessity"
language, he promises to keep the language intact until it
reaches the President's desk.
CHANGES MADE AT THE REQUEST OF THE ADMINISTRATION
June 27, 1991
1.
S. 1207, the Civil Rights Restoration Act of 1991.
a.
The Administration expressed concern that attorney's
fees granted by this bill for mixed motive cases (Price
Waterhouse cases) would not be limited to the
attorney's work performed on the mixed motive case.
4
The concern was that the attorney would always plead a
mixed motive claim along with numerous other claims and
attempt to recover fees for work done on the other
claims as well as the Price Waterhouse claim.
RESPONSE: Cosponsors inserted language that ensures that
attorneys receive fees "directly attributable only to the pursuit
of a claim under this section.'
b.
The Administration expressed concern about the
bifurcation of the rule governing challenges to consent
decrees or court-ordered remedies.
RESPONSE: Instead of applying different rules, cosponsors agreed
to apply the same rules to all consent decrees or court-ordered
remedies.
C.
The Administration was concerned about retroactive
application of the Martin V. Wilks section.
RESPONSE: Cosponsors made the section in question prospective.
d.
The Administration wanted technical corrections in the
section of the legislation concerning Lorance V. AT&T
Technologies.
RESPONSE: Cosponsors made the technical corrections.
e.
The Administration believed that the provision
concerning affirmative action was too broad.
RESPONSE: Cosponsors narrowed the provision.
2. S. 1208, the Equal Employment Opportunity Act of 1991
a.
The Administration believed that the purposes section
was unclear and too broad.
RESPONSE: Cosponsors clarified it.
b.
The Administration stronglytmphasized the need to use
the term "cause" to describe the plaintiff's burden in
a disparate impact case.
RESPONSE: Cosponsors adopted the term "cause."
C.
The Administration was disturbed by the phrase "after
discovery" in describing the plaintiff's burden in a
disparate impact suit.
RESPONSE: Cosponsors removed the term "after discovery."
d.
The Administration was concerned about a clause they
viewed as ambiguous with regard to when a defendant may
use the defense of "business necessity."
RESPONSE: Cosponsors clarified that the defense was not available
in intentional discrimination suits.
e.
The Administration requested the deletion of a clause
concerning statistical imbalances in the racial makeup
of an employer's workforce.
RESPONSE: Cosponsors deleted the clause.
f.
The Administration requested the deletion of a
"comparable worth" construction clause.
RESPONSE: Cosponsors deleted the clause.
g.
The Administration requested deletion of the subsection
concerning court-ordered race-norming.
RESPONSE: Cosponsors deleted subsection in question.
h.
The Administration requested use of the phrase
"manifest relationship to the employment in question"
in the definition of "business necessity."
definition. RESPONSE: Cosponsors incorporated that phrase in the bill's
i.
The Administration was concerned about the potential
breadth of the term "selection" in the definition of
"business necessity."
RESPONSE: Cosponsors deleted this term and replaced it with a
narrower description of employment practices.
j.
The Administration was concerned that employers would
lack discretion in making its own hiring decisions.
RESPONSE: Cosponsors attempted to clarify that employers have
discretion in choosing their employees.
k.
The Administration believed that certain sections of
the bill would be misconstrued as circular.
RESPONSE: Cosponsors deleted terms of concern.
1.
The Administration preferred conceptual descriptions
(rather than lists of examples) in the definition of
"business necessity."
RESPONSE: Cosponsors deleted lists and used language designed to
describe the concepts.
m.
The Administration requested deletion of construction
misconstruction. clauses that it viewed as superfluous and subject to
RESPONSE: Cosponsors deleted the construction clauses in
question.
n.
The Administration requested that liability not be
automatically assessed against an employer who did not
know about an alternative employment practice which has
a less disparate impact upon a protected group than the
employer's practice.
RESPONSE: Cosponsors adopted the Administration's position on
alternative practices.
3. S. 1209, the Civil Rights and Remedies Act of 1991.
a.
4
The Administration requested a limit on damages for
"reasonable accommodation" cases under the Americans
with Disabilities Act.
RESPONSE: Cosponsors developed a "good faith" exception for such
cases.
b.
The Administration requested a cap on future pecuniary
damages.
RESPONSE: Cosponsors adopted such a cap.
C.
The Administration requested a lowering of caps on
compensatory and punitive damages.
RESPONSE: Cosponsors accommodated request by lowering caps, and
creating three tiers of damages for varying sizes of businesses.
DEFINITIONS OF BUSINESS NECESSITY
LANGUAGE OF S. 1208
The term "required by business necessity" means--
(1) in the case of employment practices involving
selection, that the practice or group of practices bears a
manifest relationship to the requirements for effective job
performance; and
(2) in the case of other employment decisions not
involving employment selection practices as described in
paragraph (1), the practice or group of practices bears a
.
manifest relationship to a legitimate business objective of
the employer.
The term "requirements for effective job performance"
includes--
(1) the ability to perform competently the actual work
activities lawfully required by the employer for an
employment position; and
(2) any other lawful requirement, that is important to
the performance of the job, including, but not limited to,
factors such as punctuality, attendance, a willingness to
avoid engaging in misconduct or insubordination, not having a
work history demonstrating unreasonable job turnover, and not
engaging in conduct or activity that improperly interferes
with the performance of work by others.
OPTION 1
The term "required by business necessity" means--
(1) in the case of employment practices primarily
measuring qualifications for or ability to do the job, the
challenged practice must bear a manifest relationship to the
requirements for effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
The term "employment in question" includes--
(1) the performance of actual work activities required
by the employer for a job or job family; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
OPTION 2
The term "required by business necessity" means--
(1) in the case of practices that are used as conditions
of employment in or transfer to jobs, the challenged practice
must bear a manifest relationship to the requirements for
effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship employer. to a legitimate business objective of the
OPTION 3
The term "required by business necessity" means-
(1) in the case of practices that are used as conditions
of employment in or transfer to jobs, the challenged practice
must bear a demonstrable relationship to successful
performance of the jobs for which it was used.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
employer. relationship to a legitimate business objective of the
OPTION 4
The term "required by business necessity" means--
(1) in the case of employment practices that are used as
conditions of employment in or transfer to jobs, the
challenged practice must bear a manifest relationship to the
employment in question.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
employer. relationship to a legitimate business objective of the
The term "employment in question" includes--
(1) the performance of actual work activities required
by the employer for a job or class of jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
OPTION 5
The term "required by business necessity" means
the challenged practice must bear a manifest
relationship to the employment in question.
(1) in the case of employment practices used to measure
job qualifications or ability to do the job, the term
"employment in question" means job performance.
(2) in the case of employment practices not described in
paragraph (1), the term "employment in question" means a
legitimate business objective of the employer.
The term "job performance" includes-
(1) the performance of actual work activities required
by the employer for a job or class of jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
SUNUNU PROPOSAL
The term "required by business necessity" means
(1) in the case of employment practices that are used to
measure the ability to perform the job, the challenged
practice must bear a manifest relationship to the employment
in question.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
The term "employment in question" includes, but is not
limited to--
(1) the performance of actual work activities required
by the employer for a job or class of jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
SUNUNU PROPOSAL WITH SUGGESTED DANFORTH CHANGES
The term "required by business necessity" means--
(1) in the case of employment practices that are used as job
qualifications or used to measure the ability to perform the job
the challenged practice must bear a manifest relationship to the
employment in question.
(2) in the case of employment practices not described in (1)
above, the challenged practice must bear a manifest relationship
to a legitimate business objective of the employer.
The term "employment in question" means includes, but is not
limited to --
(1) the performance of actual work activities required by
the employer for a job or class of jobs; or and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
SEN. DANFORTH
2
1 109 S. Ct. 2115 (1989) has weakened the scope and effec-
2 tiveness of Federal civil rights protections.
3
(b) PURPOSES.-The purposes of this Act are-
from tendens the theamings
4
(1) to overrule the treatment of business neces-
5
sity as a defense in Wards Cove Packing Co. V.
proof bindens and the
6
Atonio and to codify the meaning of business neces-
7
sity used in Griggs V. Duke Power Co., 401. U.S.
8
424 (1971), and
9
(2) to provide statutory authority and guide-
10
lines for the adjudication of disparate impact suits
11
under title VII of the Civil Rights Act of 1964 (42
12
U.S.C. 2000e et seq.).
13 SEC. 3. BURDEN OF PROOF IN DISPARATE IMPACT CASES.
14
(a) IN GENERAL-Section 703 of the Civil Rights
15 Act of 1964 (42 U.S.C. 2000e-2) is amended by adding
16 at the end the following new subsection:
17
"(k)(1)(A) An unlawful employment practice based
wm
18 on disparate impact is established under this title only if-
narrow
19
"(i) a complaining party demonstrates that a
20
particular employment practice or group of employ-
21
ment practices results in a disparate impact on the
22
basis of race, color, religion, sex, or national origin;
23
and
SEN. DANFORTH
2
1 109 S. Ct. 2115 (1989) has weakened the scope and effec-
2 tiveness of Federal civil rights protections.
3
(b) PURPOSES.-The purposes of this Act are
Producture proof
4
(1) to overrule the "treatment of business neces-
5
sity as a defense in Wards Cove Packing Co. V.
bindens
6
Atonio and to codify the meaning of business neces-
7
sity used in Griggs V. Duke Power Co., 401. U.S.
8
424 (1971), and
9
(2) to provide statutory authority and guide-
10
lines for the adjudication of disparate impact suits
11
under title VII of the Civil Rights Act of 1964 (42
12
U.S.C. 2000e et seq.).
13 SEC. 3. BURDEN OF PROOF IN DISPARATE IMPACT CASES.
14
(a) IN GENERAL-Section 703 of the Civil Rights
15 Act of 1964 (42 U.S.C. 2000e-2) is amended by adding
16 at the end the following new subsection:
"ongit
17
"(k)(1)(A) An unlawful employment practice based
Em
18 on disparate impact is established under this title only if-
namow
19
"(i) a complaining party demonstrates that a
20
particular employment practice or group of employ-
21
ment practices results in a disparate impact on the
22
basis of race, color, religion, sex, or national origin;
23
and
2
1 109 S. Ct. 2115 (1989) has weakened the scope and effec-
2 tiveness of Federal civil rights protections.
3
(b) PURPOSES.-The purposes of this Act are- -
from turreno the hearings
4
(1) to overrule the treatment of business neces-
5
sity as a defense in Wards Cove Packing Co. V.
proof bindens and
6
Atonio and to codify the meaning of business neces-
7
sity used in Griggs V. Duke Power Co., 401. U.S.
8
424 (1971), and
9
(2) to provide statutory authority and guide-
10
lines for the adjudication of disparate impact suits
11
under title VII of the Civil Rights Act of 1964 (42
12
U.S.C. 2000e et seq.).
13 SEC. 3. BURDEN OF PROOF IN DISPARATE IMPACT CASES.
14
(a) IN GENERAL-Section 703 of the Civil Rights
15 Act of 1964 (42 U.S.C. 2000e-2) is amended by adding
16 at the end the following new subsection:
"ong"t
17
"(k)(1)(A) An unlawful employment practice based
WM
18 on disparate impact is established under this title only if-
namow
19
"(i) a complaining party demonstrates that a
20
particular employment practice or group of employ-
21
ment practices results in a disparate impact on the
22
basis of race, color, religion, sex, or national origin;
23
and
DANFORTH
Lairto say 95% will be taken cam of
"Measure ability to perform the job"
3 Hypotheticals
1) H.S. Diplane
2) Local residence
3). Single women
Kennedy claims that none of those fall within
(1)
(2)
:-
business could how any Adreason to justify
them
11
Suggest replace 11 "means" In
VD. includes but not
butd to
I
alt suggest
Instand of all bus. me.
To
Cong Hyde 226-1240
DEFINITION OF BUSINESS NECESSITY
OPTION A
The term "required by business necessity" means--
(1) in the case of employment practices that are used to
measure ability to perform the job, the challenged practice must
bear a manifest relationship to the employment in question.
(2) in the case of employment practices not described in (1)
above, the challenged practice must bear a manifest relationship
to a legitimate business objective of the employer.
The term "employment in question" includes, but is not limited
to-- (1) the performance of actual work activities required by
the employer for a job or class jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
06/25/91
11:05
SENATE TELECOMM DEPT
002
June 24, 1991
MEMORANDUM
TO:
SENATOR DOLE
FROM:
DENNIS SHEA
SUBJECT: CIVIL RIGHTS -- UPDATE
Attached for your review are 1) the Hyde-Goodling letter to
Senator Danforth, and 2) a letter from Evan Kemp to John Sununu.
Hyde-Goodling Letter
The Hyde-Goodling letter criticizes the Danforth bill on the
following issues: 1) business necessity, 2) particularity, 3)
jury trials, 4) damages, 5) Price Waterhouse, and 6) Martin V.
Wilks. All of these concerns remain despite the apparent changes
to the original Danforth bill. The Hyde-Goodling letter also
criticizes the exception to the ban on race-norming contained in
the original Danforth bill. Although Danforth has apparently
deleted this exception, staff for Hyde and Goodling wanted to
express in writing their objection to the race-norming exception.
Hyde and Goodling expect to send their letter to Senator
Danforth "first thing" tomorrow morning.
Evan Kemp Letter
Evan Kemp's letter to John Sununu bluntly states that
Danforth's non-Griggs definition of "business necessity" would
lead to quotas and would undermine the President's Education
Strategy. The Kemp letter is very strongly worded, and in fact,
suggests that the Griggs decision should be reversed, not
restored.
Meetings
It is my understanding that there will be a White House
meeting tomorrow at 11:00 a.m. with Senator Danforth, John
Sununu, and Attorney General Thornburgh.
It is also my understanding that Danforth will be meeting
with his Republican co-sponsors and with the Democrats (Kennedy,
Bumpers, and Boren) at 4:30 tomorrow afternoon.
If Danforth runs into a brick-wall during his meeting with
Thornburgh and Sununu, he may use the 4:30 meeting to wrap
everything up, saying that he tried to negotiate with the
Administration but that the Administration was recalcitrant.
06/25/91
11:05
SENATE TELECOMM DEPT
003
Another Business Necessity Compromise
I would like to suggest another compromise definition of
"business necessity," which deletes the word "designed" from your
June 19th proposal to Danforth and inserts the word "used." The
revised compromise would read as follows:
1) In the case of employment practices primarily used to
measure the ability to do the job, the challenged
practice must be related to job performance.
2) In the case of employment decisions not described in (1)
above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
It appears that Danforth has conceded that the inclusion of
the word "used" in the business necessity definition is
acceptable. His "DOLE STAFF RECOMMENDATION MODIFIED," which he
wanted the White House to review today, reads as follows: 1) in
the case of employment practices that are used as conditions of
employment in or transfer to jobs, the challenged practice must
bear a manifest relationship to the requirements for effective
job performance."
It appears that Danforth cannot complain about the word
"used." He's adopted it himself.
I have forwarded the revised compromise definition to the
White House. Perhaps Sununu could raise it with Danforth at the
11:00 meeting.
DEFINITION OF BUSINESS NECESSITY
LANGUAGE OF S. 1208
The term "required by business necessity" means--
(1) in the case of employment practices involving
selection, that the practice or group of practices bears a
manifest relationship to the requirements for effective job
performance; and
(2) in the case of other employment decisions not
involving employment selection practices as described in
paragraph (1), the practice or group of practices bears a
manifest relationship to a legitimate business objective of
the employer.
The term "requirements for effective job performance"
includes--
(1) the ability to perform competently the actual work
activities lawfully required by the employer for an
employment position; and
(2) any other lawful requirement, that is important to
the performance of the job, including, but not limited to,
factors such as punctuality, attendance, a willingness to
avoid engaging in misconduct or insubordination, not having a
work history demonstrating unreasonable job turnover, and not
engaging in conduct or activity that improperly interferes
with the performance of work by others.
OPTION A
The term "required by business necessity" means--
(1) in the case of employment practices that are used as
conditions of employment in or transfer to jobs, the
challenged practice must bear a manifest relationship to the
employment in question.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
but not limited to
The term "employment in question" includes--
(1) the performance of actual work activities required
by the employer for a job or class of jobs; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
OPTION B
The term "required by business necessity" means--
the challenged practice must bear a manifest
relationship to the employment in question.
12:45
SENATOR GRAMM called.
"Rudman and Domenici are
moving back toward us on the
Civil Rights bill"
He is also seeking feedback
on the Danforth meeting.
k
Governor Sununu
FROM
THE WHITE HOUSE
WASHINGTON, D.C.
The Honorable Vernon A. Walters
Ambassador to the Federal Republic
of Germany
American Embassy
Box 215
APO New York, New York 09080
THE PRESIDENT
June 24,1991
Dear Rich,
Vim game me your
personal letter of 6-19.
1. I undertained protectly
2. Thanks for your
kind- - genera words on my
previday. with your own sense
of history, I an very
flattred - pleand.
All But to you.
Your Frund,
G
B/
EMBASSY OF THE
UNITED STATES OF AMERICA
Berlin
June 19, 1991
Dear Mr. President,
I would like to thank you for the marvelous opportunity
you have given me to serve as Ambassador in Germany during
these extraordinary times. My tenure has extended from the
unification of Germany to the victory in the Gulf. My
experience here has been unforgettable.
As I told you a few months ago, I believe it appropriate
to leave the Embassy some time in late summer or early autumn,
depending on when my successor can be chosen and confirmed.
You may be sure I will do everything to ease his task of
settling in.
Once again may I say how grateful I am to you for showing
confidence in me and allowing me the chance to serve in
Germany during its moment of historic change.
Your presidency has given a tremendous boost to our Nation
not only in Germany but throughout the world. Please accept
my wishes for the continuation of your outstanding success.
With warmest greetings to Mrs. Bush and to you,
Faithfully Waths
Vernon A. Walters
Danforth Handwriting
This proposal New prepared after we
received The "line ls line 'revious
DANFORTH PROPOSAL by The administration
The term "required by business necessity" means--
(1) in the case of employment practices primarily
measuring qualifications for or ability to do the job, the
challenged practice must bear a manifest relationship to the
requirements for effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
This was suppectable Dole. It
is not another leaving of Two
DOLE STAFF RECOMMENDATION subjective meaning of "hecome this
are relevant,
The term "required by business necessity" means--
(1) in the case of practices that are used by the
employer because they are relevant to job performance, the
challenged practice must bear a manifest relationship to the
requirements for effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
This is on about to line Fowe
suggestion. The included
DOLE STAFF RECOMMENDATION MODIFIED language - from Sign P 426
The term "required by business necessity" means--
(1) in the case of practices that are used as conditions
of employment in or transfer to jobs, the challenged practice
must bear a manifest relationship to the requirements for
effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
This is a variation on The modification
immediately alone. the underloned language
MODIFICATION
II
is from smoosp 431
The term "required by business necessity" means--
(1) in the case of practices that are used as conditions
of employment in or transfer to jobs, the challenged practice
must bear a demonstrable relationship to successful
performance of the jobs for which it was used.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
200
DOJ:OLA
12:02
19/24/91
OF
Office of the Attorney General
OM
SEQUITUR
Washington, D. C. 20530
DOMINA
JUSTITIA
June 21, 1991
The Honorable John C. Danforth
United States Senate
Washington, D.C. 20510
Dear Senator Danforth:
Governor Sununu has asked me to respond to your letters of
June 19 and 20. In your first letter, you set out several
phrases used in the course of discussions of "business necessity"
in the opinion in Griggs V. Duke Power Co., 401 U.S. 424 (1971),
and stated that one of these phrases -- "manifest relationship to
the employment in question" -- has been declared unacceptable by
the principal proponents of H.R. 1. You suggested in both
letters that we should instead accept as the holding of Griggs
the phrase "shown to be related to job performance." Finally,
you suggest in your second letter that this phrase be codified as
the definition of "business necessity." As I will explain in
some detail, the one phrase declared "off limits" is the only
phrase that has been rationally defended as the definition of
business necessity under Griggs.
I appreciate your efforts to identify language in Griggs
which the proponents of H.R. 1 will accept. I can imagine your
frustration that the proponents, notwithstanding their insistence
that they are "merely restoring Griggs", are in fact prepared to
accept anything but the legal standard established by Griggs.
One difficulty, however, with your suggestion is that it
rejects two decades of Supreme Court precedent. Indeed, the very
language now deemed unacceptable is the only language that the
Court has always treated as the operative standard: "manifest
relationship to the employment in question." Contrary to your
suggested reading of the case, an unbroken line of Supreme Court
opinions overwhelmingly confirms this proposition. Nor is this
Justices. an issue on which there has ever been disagreement among the
Scarcely a year after Griggs was decided, Justice
Thurgood Marshall remarked in passing that Griggs "even
placed the burden on the employer 'of showing that any
given requirement must have a manifest relationship to
the employment in question. Jefferson v. Hackney,
406 U.S. 535, 577 (1972) (Marshall, J., dissenting)
(quoting Griggs)
In 1973, in McDonnell Douglas Corp. V. Green, 411 U.S.
792, 805-806, the Court quoted the "related to job
performance" language, but only because it had been
specifically quoted and relied on by the court below
(463 F.2d 337, 352 (1972) ) The Supreme Court itself
rejected its application to the case before the Court.
See 411 U.S. at 806-807.
In 1975, Justice Stewart, speaking for the Court and
joined by Justices Douglas, Brennan, White, Marshall,
and Rehnquist, said that the Court in Griggs had
"unanimously held" that an employer must "meet[ 'the
burden of showing that any given requirement [has]
a manifest relationship to the employment in
question. Albemarle Paper Co. V. Moody, 422 U.S.
405, 425 (quoting Griggs).
In 1976, the Court again quoted this same language when
stating the Griggs standard. The opinion was written
by Justice Rehnquist, and joined by Chief Justice
Burger (the author of Griggs) and by Justices Stewart,
White, and Powell. General Electric Co. V. Gilbert,
429 U.S. 125, 137 n. 14.
In 1977, Justice Stewart again quoted this same
language from Griggs. He was speaking for the Court,
and his opinion was joined by Justices Powell, Stevens,
Brennan, and Marshall. Dothard V. Rawlinson, 433 U.S.
321, 329.
In 1979, Justice Stevens wrote an opinion for the Court
quoting the same language: "manifest relationship to
the employment in question. He was joined by Chief
Justice Burger (the author of Griggs) and by Justices
Stewart, Blackmun, and Rehnquist. New York Transit
Authority V. Beazer, 440 U.S. 568, 587 n. 31 (quoting
Griggs and citing Albemarle).
In 1982, Justice Brennan's opinion for the Court, which
was joined by Justices White, Marshall, Blackmun, and
Stevens, quoted both formulations. The context makes
it clear, however, that the phrase "manifest
relationship to the employment in question" is the
formulation adopted by "Griggs and its progeny" in
establishing the analytical framework for disparate
impact cases. Connecticut V. Teal, 457 U.S. 440, 446.
This reading of Teal was later confirmed in an opinion
by Justice Blackmun, in which Justices Brennan and
2
Marshall joined. Justice Blackmun quoted the phrase
"manifest relationship to the employment in question,"
attributing it both to Teal and to Griggs. See Watson
V. Fort Worth Bank & Trust, 487 U.S. 977, 1004 (1988)
(Blackmun, J., joined by Brennan and Marshall, JJ.,
concurring in part and concurring in the judgment).
Elsewhere in the same opinion, these Justices quoted
the same language yet again. See id. at 1001.
Justice Powell's dissent in Teal also quoted the phrase
"manifest relationship to the employment in question."
See 457 U.S. at 461 (quoting Dothard's quotation of
Griggs).
Also in 1982, Justice Rehnquist mentioned in an opinion
for the Court that Griggs had held that the employer
must show "a manifest relationship to the employment in
question." His opinion was joined by Chief Justice
Burger (the author of Griggs) and by Justices White,
Blackmun, Powell, and O'Connor. General Building
Contractors Ass'n V. Pennsylvania, 458 U.S. 375, 383 n.
8.
In 1988, Justice O'Connor quoted the same language in
an opinion joined by Chief Justice Rehnquist and by
Justices White and Scalia. Watson V. Fort Worth Bank &
Trust, 487 U.S. 977, 997. As noted above, Justice
Blackmun's concurring opinion, in which Justices
Brennan and Marshall joined, used the same quotation no
less than three times. Id. at 1001, 1004, 1005; see
also id. at 1006.
Finally, in the discussion of business necessity in
Wards Cove Packing Co. V. Atonio, 490 U.S. 642, 659
(1989), the Court cited the page on which the phrase
"manifest relationship to the employment in question"
appears in Watson, Beazer, and Griggs. Even the
dissenting opinion (Stevens, J., joined by Brennan,
Marshall, and Blackmun, JJ.) quotes this same language
at least three times. Id. at 666, 668 n. 14.
In sum, the phrase "manifest relationship to the employment
in question" correctly states the legal standard to which the
Supreme Court has unwaveringly held since Griggs was first
decided. Apart from the citations in Teal and McDonnell Douglas,
which for the reasons discussed above do not undermine my
conclusion, the phrase you propose to treat as the holding in
Griggs has never even been cited by the Court.
In response to the argument in your June 20 letter, I must
say that it is not surprising that the opinion in Griggs would
contain numerous phrases using the words "job performance" or the
3
like. The facts of that particular case, and the arguments
generated by those facts, naturally led the Court to focus on the
question of whether the employment practices at issue predicted
job performance.
It is equally unsurprising, however, that the Court has
never thought or said that every disparate impact case should be
shoehorned into a narrow analytical framework dictated by the
particular facts at issue in Griggs. That is why the Court has
always relied on the more general language of Griggs -- "manifest
relationship to the employment in question" -- when stating the
legal standard established by Griggs.
To take but one example, this language reflects the fact
that the Griggs Court expressly left open the question "whether
testing requirements that take into account capability for the
next succeeding position or related future promotion might be
utilized upon a showing that such long-range requirements fulfill
a genuine business need." Griggs, 401 U.S. at 432 (emphasis
added). The Court later held unambiguously, in a manner that
would have been difficult or impossible under the definition of
business necessity that you propose, that the business necessity
standard is satisfied if an employer's "legitimate employment
goals
are significantly served by -- even if they do not
require -- [a challenged practice] Beazer, 440 U.S. at 587,
n.31 (Stevens, J., joined by Burger, C.J., and by Stewart,
Blackmun, and Rehnquist, JJ.) (emphasis added). This
understanding of business necessity has been completely
noncontroversial on the Court. Indeed, even the dissenting
opinion in Wards Cove firmly stated: "The opinion in Griggs made
it clear that a neutral practice that operates to exclude
minorities is nevertheless lawful if it serves a valid business
purpose. Wards Cove, 490 U.S. at 665 (Stevens, J., joined by
Brennan, added) Marshall, and Blackmun, JJ., dissenting) (emphasis
Neither does it seem sensible to create a legal rule under
which any employment practice not related to job performance
could give rise to a finding of liability under Title VII. We
know that there are legitimate employment criteria that would not
meet this standard. "No smoking" rules provide one kind of
example. A rule against hiring those with criminal convictions
to work on a police force offers another example. An employer's
decision to reject all applicants who lie on their employment
applications is yet another example.
For over a year, Americans have been told again and again
that the goal of this legislative initiative is to "restore
Griggs. But we have never been told why the language from
Griggs that the Supreme Court has been using for 20 years to
define "business necessity" fails to codify Griggs. Nor have we
been told why this language, or the language from Justice
4
Stevens' 1979 Beazer opinion, is "unacceptable" as an appropriate
legal standard.
In your op-ed in the New York Times yesterday you said "[i]f
ever the devil was in the details he has been present " in this
issue. I could not agree more. This is not a political issue,
or one in which new language can be lightly substituted for well
understood precedent. As the President's chief legal advisor, I
have insisted on a reasoned and substantive review of every
proposal offered to deal with these matters. Before this
Administration and the Congress accept the departure from
precedent and from the stated objective of this legislation which
your proposal incorporates, I think it is only prudent that we
have a clear understanding as to why the definition of "business
necessity" consistently used by the Supreme Court for many years,
and without any objection from any member of the Court, is
suddenly unacceptable as a matter of policy.
Additionally, I must note that any agreement on an
acceptable definition of "business necessity" would be
inseparable from agreement on the related issues raised by
efforts to codify disparate impact analysis and on the other
matters addressed in these bills. As you know from the
conversations that your staff had with Administration attorneys,
S. 1208 -- like H.R. 1 -- suffers in our view from serious
shortcomings in several respects.
I trust that we can continue to discuss these issues with a
view to achieving a constructive outcome.
Sincerely,
Dick Thornburgh
Attorney General
5
OF
JUSTI
Office of the Attorney General
OBA
SEQUITUR
Washington, D. C. 20530
JUSTITA
June 21, 1991
The Honorable John C. Danforth
United States Senate
Washington, D.C. 20510
Dear Senator Danforth:
Governor Sununu has asked me to respond to your letters of
June 19 and 20. In your first letter, you set out several
phrases used in the course of discussions of "business necessity"
in the opinion in Griggs V. Duke Power Co., 401 U.S. 424 (1971)
and stated that one of these phrases -- "manifest relationship to
the employment in question" -- has been declared unacceptable by
the principal proponents of H.R. 1. You suggested in both
letters that we should instead accept as the holding of Griggs
the phrase "shown to be related to job performance." Finally,
you suggest in your second letter that this phrase be codified as
the definition of "business necessity." As I will explain in
some detail, the one phrase declared "off limits" is the only
phrase that has been rationally defended as the definition of
business necessity under Griggs.
I appreciate your efforts to identify language in Griggs
which the proponents of H.R. 1 will accept. I can imagine your
frustration that the proponents, notwithstanding their insistence
that they are "merely restoring Griggs", are in fact prepared to
accept anything but the legal standard established by Griggs.
One difficulty, however, with your suggestion is that it
rejects two decades of Supreme Court precedent. Indeed, the very
language now deemed unacceptable is the only language that the
Court has always treated as the operative standard: "manifest
relationship to the employment in question." Contrary to your
suggested reading of the case, an unbroken line of Supreme Court
opinions overwhelmingly confirms this proposition. Nor is this
an issue on which there has ever been disagreement among the
Justices.
Scarcely a year after Griggs was decided, Justice
Thurgood Marshall remarked in passing that Griggs "even
placed the burden on the employer 'of showing that any
given requirement must have a manifest relationship to
the employment in question. Jefferson V. Hackney,
406 U.S. 535, 577 (1972) (Marshall, J., dissenting)
(quoting Griggs).
In 1973, in McDonnell Douglas Corp. V. Green, 411 U.S.
792, 805-806, the Court quoted the "related to job
performance" language, but only because it had been
specifically quoted and relied on by the court below
(463 F.2d 337, 352 (1972)). The Supreme Court itself
rejected its application to the case before the Court.
See 411 U.S. at 806-807.
In 1975, Justice Stewart, speaking for the Court and
joined by Justices Douglas, Brennan, White, Marshall,
and Rehnquist, said that the Court in Griggs had
"unanimously held" that an employer must "meet[] 'the
burden of showing that any given requirement [has]
a manifest relationship to the employment in
question. Albemarle Paper Co. V. Moody, 422 U.S.
405, 425 (quoting Griggs).
In 1976, the Court again quoted this same language when
stating the Griggs standard. The opinion was written
by Justice Rehnquist, and joined by Chief Justice
Burger (the author of Griggs) and by Justices Stewart,
White, and Powell. General Electric Co. V. Gilbert,
429 U.S. 125, 137 n. 14.
In 1977, Justice Stewart again quoted this same
language from Griggs. He was speaking for the Court,
and his opinion was joined by Justices Powell, Stevens,
Brennan, and Marshall. Dothard V. Rawlinson, 433 U.S.
321, 329.
In 1979, Justice Stevens wrote an opinion for the Court
quoting the same language: "manifest relationship to
the employment in question." He was joined by Chief
Justice Burger (the author of Griggs) and by Justices
Stewart, Blackmun, and Rehnquist. New York Transit
Authority V. Beazer, 440 U.S. 568, 587 n. 31 (quoting
Griggs and citing Albemarle).
In 1982, Justice Brennan's opinion for the Court, which
was joined by Justices White, Marshall, Blackmun, and
Stevens, quoted both formulations. The context makes
it clear, however, that the phrase "manifest
relationship to the employment in question" is the
formulation adopted by "Griggs and its progeny" in
establishing the analytical framework for disparate
impact cases. Connecticut V. Teal, 457 U.S. 440, 446.
This reading of Teal was later confirmed in an opinion
by Justice Blackmun, in which Justices Brennan and
2
Marshall joined. Justice Blackmun quoted the phrase
"manifest relationship to the employment in question,"
attributing it both to Teal and to Griggs. See Watson
V. Fort Worth Bank & Trust, 487 U.S. 977, 1004 (1988)
(Blackmun, J., joined by Brennan and Marshall, JJ.,
concurring in part and concurring in the judgment).
Elsewhere in the same opinion, these Justices quoted
the same language yet again. See id. at 1001.
Justice Powell's dissent in Teal also quoted the phrase
"manifest relationship to the employment in question."
See 457 U.S. at 461 (quoting Dothard's quotation of
Griggs).
O
Also in 1982, Justice Rehnquist mentioned in an opinion
for the Court that Griggs had held that the employer
must show "a manifest relationship to the employment in
question." His opinion was joined by Chief Justice
Burger (the author of Griggs) and by Justices White,
Blackmun, Powell, and O'Connor. General Building
Contractors Ass'n V. Pennsylvania, 458 U.S. 375, 383 n.
8.
In 1988, Justice O'Connor quoted the same language in
an opinion joined by Chief Justice Rehnquist and by
Justices White and Scalia. Watson V. Fort Worth Bank &
Trust, 487 U.S. 977, 997. As noted above, Justice
Blackmun's concurring opinion, in which Justices
Brennan and Marshall joined, used the same quotation no
less than three times. Id. at 1001, 1004, 1005; see
also id. at 1006.
Finally, in the discussion of business necessity in
Wards Cove Packing Co. V. Atonio, 490 U.S. 642, 659
(1989), the Court cited the page on which the phrase
"manifest relationship to the employment in question"
appears in Watson, Beazer, and Griggs. Even the
dissenting opinion (Stevens, J., joined by Brennan,
Marshall, and Blackmun, JJ.) quotes this same language
at least three times. Id. at 666, 668 n. 14.
In sum, the phrase "manifest relationship to the employment
in question" correctly states the legal standard to which the
Supreme Court has unwaveringly held since Griggs was first
decided. Apart from the citations in Teal and McDonnell Douglas,
which for the reasons discussed above do not undermine my
conclusion, the phrase you propose to treat as the holding in
Griggs has never even been cited by the Court.
In response to the argument in your June 20 letter, I must
say that it is not surprising that the opinion in Griggs would
contain numerous phrases using the words "job performance" or the
3
like. The facts of that particular case, and the arguments
generated by those facts, naturally led the Court to focus on the
question of whether the employment practices at issue predicted
job performance.
It is equally unsurprising, however, that the Court has
never thought or said that every disparate impact case should be
shoehorned into a narrow analytical framework dictated by the
particular facts at issue in Griggs. That is why the Court has
always relied on the more general language of Griggs -- "manifest
relationship to the employment in question" -- when stating the
legal standard established by Griggs.
To take but one example, this language reflects the fact
that the Griggs Court expressly left open the question "whether
testing requirements that take into account capability for the
next succeeding position or related future promotion might be
utilized upon a showing that such long-range requirements fulfill
a genuine business need." Griggs, 401 U.S. at 432 (emphasis
added) The Court later held unambiguously, in a manner that
would have been difficult or impossible under the definition of
business necessity that you propose, that the business necessity
standard is satisfied if an employer's "legitimate employment
goals
are significantly served by -- even if they do not
require -- [a challenged practice]. Beazer, 440 U.S. at 587,
n.31 (Stevens, J., joined by Burger, C.J., and by Stewart,
Blackmun, and Rehnquist, JJ.) (emphasis added). This
understanding of business necessity has been completely
noncontroversial on the Court. Indeed, even the dissenting
opinion in Wards Cove firmly stated: "The opinion in Griggs made
it clear that a neutral practice that operates to exclude
minorities is nevertheless lawful if it serves a valid business
purpose." Wards Cove, 490 U.S. at 665 (Stevens, J., joined by
Brennan, added). Marshall, and Blackmun, JJ., dissenting) (emphasis
Neither does it seem sensible to create a legal rule under
which any employment practice not related to job performance
could give rise to a finding of liability under Title VII. We
know that there are legitimate employment criteria that would not
meet this standard. "No smoking" rules provide one kind of
example. A rule against hiring those with criminal convictions
to work on a police force offers another example. An employer's
decision to reject all applicants who lie on their employment
applications is yet another example.
For over a year, Americans have been told again and again
that the goal of this legislative initiative is to "restore
Griggs.' But we have never been told why the language from
Griggs that the Supreme Court has been using for 20 years to
define "business necessity" fails to codify Griggs. Nor have we
been told why this language, or the language from Justice
4
Stevens' 1979 Beazer opinion, is "unacceptable" as an appropriate
legal standard.
In your op-ed in the New York Times yesterday you said "[i]f
ever the devil was in the details he has been present " in this
issue. I could not agree more. This is not a political issue,
or one in which new language can be lightly substituted for well
understood precedent. As the President's chief legal advisor, I
have insisted on a reasoned and substantive review of every
proposal offered to deal with these matters. Before this
Administration and the Congress accept the departure from
precedent and from the stated objective of this legislation which
your proposal incorporates, I think it is only prudent that we
have a clear understanding as to why the definition of "business
necessity" consistently used by the Supreme Court for many years,
and without any objection from any member of the Court, is
suddenly unacceptable as a matter of policy.
Additionally, I must note that any agreement on an
acceptable definition of "business necessity" would be
inseparable from agreement on the related issues raised by
efforts to codify disparate impact analysis and on the other
matters addressed in these bills. As you know from the
conversations that your staff had with Administration attorneys,
S. 1208 -- like H.R. 1 -- suffers in our view from serious
shortcomings in several respects.
I trust that we can continue to discuss these issues with a
view to achieving a constructive outcome.
Sincerely,
Dick Thornburgh
Attorney General
5
STATE
OF
JUST
Office of the Attorney General
OM
SEQUITUR
Washington, D. C. 20530
DOMINA
JUSTITIA
June 21, 1991
The Honorable John C. Danforth
United States Senate
Washington, D.C. 20510
Dear Senator Danforth:
Governor Sununu has asked me to respond to your letters of
June 19 and 20. In your first letter, you set out several
phrases used in the course of discussions of "business necessity"
in the opinion in Griggs V. Duke Power Co., 401 U.S. 424 (1971),
and stated that one of these phrases -- "manifest relationship to
the employment in question" -- has been declared unacceptable by
the principal proponents of H.R. 1. You suggested in both
letters that we should instead accept as the holding of Griggs
the phrase "shown to be related to job performance." Finally,
you suggest in your second letter that this phrase be codified as
the definition of "business necessity." As I will explain in
some detail, the one phrase declared "off limits" is the only
phrase that has been rationally defended as the definition of
business necessity under Griggs.
I appreciate your efforts to identify language in Griggs
which the proponents of H.R. 1 will accept. I can imagine your
frustration that the proponents, notwithstanding their insistence
that they are "merely restoring Griggs", are in fact prepared to
accept anything but the legal standard established by Griggs.
One difficulty, however, with your suggestion is that it
rejects two decades of Supreme Court precedent. Indeed, the very
language now deemed unacceptable is the only language that the
Court has always treated as the operative standard: "manifest
relationship to the employment in question." Contrary to your
suggested reading of the case, an unbroken line of Supreme Court
opinions overwhelmingly confirms this proposition. Nor is this
Justices. an issue on which there has ever been disagreement among the
Scarcely a year after Griggs was decided, Justice
Thurgood Marshall remarked in passing that Griggs "even
placed the burden on the employer 'of showing that any
given requirement must have a manifest relationship to
the employment in question. Jefferson V. Hackney,
406 U.S. 535, 577 (1972) (Marshall, J., dissenting)
(quoting Griggs).
In 1973, in McDonnell Douglas Corp. V. Green, 411 U.S.
792, 805-806, the Court quoted the "related to job
performance" language, but only because it had been
specifically quoted and relied on by the court below
(463 F.2d 337, 352 (1972) ) The Supreme Court itself
rejected its application to the case before the Court.
See 411 U.S. at 806-807.
In 1975, Justice Stewart, speaking for the Court and
joined by Justices Douglas, Brennan, White, Marshall,
and Rehnquist, said that the Court in Griggs had
"unanimously held" that an employer must "meet[] 'the
burden of showing that any given requirement [has]
a manifest relationship to the employment in
question. Albemarle Paper Co. V. Moody, 422 U.S.
405, 425 (quoting Griggs).
In 1976, the Court again quoted this same language when
stating the Griggs standard. The opinion was written
by Justice Rehnquist, and joined by Chief Justice
Burger (the author of Griggs) and by Justices Stewart,
White, and Powell. General Electric Co. V. Gilbert,
429 U.S. 125, 137 n. 14.
O
In 1977, Justice Stewart again quoted this same
language from Griggs. He was speaking for the Court,
and his opinion was joined by Justices Powell, Stevens,
Brennan, and Marshall. Dothard V. Rawlinson, 433 U.S.
321, 329.
O
In 1979, Justice Stevens wrote an opinion for the Court
quoting the same language: "manifest relationship to
the employment in question." He was joined by Chief
Justice Burger (the author of Griggs) and by Justices
Stewart, Blackmun, and Rehnquist. New York Transit
Authority V. Beazer, 440 U.S. 568, 587 n. 31 (quoting
Griggs and citing Albemarle).
O
In 1982, Justice Brennan's opinion for the Court, which
was joined by Justices White, Marshall, Blackmun, and
Stevens, quoted both formulations. The context makes
it clear, however, that the phrase "manifest
relationship to the employment in question" is the
formulation adopted by "Griggs and its progeny" in
establishing the analytical framework for disparate
impact cases. Connecticut V. Teal, 457 U.S. 440, 446.
This reading of Teal was later confirmed in an opinion
by Justice Blackmun, in which Justices Brennan and
2
Marshall joined. Justice Blackmun quoted the phrase
"manifest relationship to the employment in question,"
attributing it both to Teal and to Griggs. See Watson
V. Fort Worth Bank & Trust, 487 U.S. 977, 1004 (1988)
(Blackmun, J., joined by Brennan and Marshall, JJ.,
concurring in part and concurring in the judgment).
Elsewhere in the same opinion, these Justices quoted
the same language yet again. See id. at 1001.
Justice Powell's dissent in Teal also quoted the phrase
"manifest relationship to the employment in question."
See 457 U.S. at 461 (quoting Dothard's quotation of
Griggs)
Also in 1982, Justice Rehnquist mentioned in an opinion
for the Court that Griggs had held that the employer
must show "a manifest relationship to the employment in
question." His opinion was joined by Chief Justice
Burger (the author of Griggs) and by Justices White,
Blackmun, Powell, and O'Connor. General Building
Contractors Ass'n V. Pennsylvania, 458 U.S. 375, 383 n.
8.
O
In 1988, Justice O'Connor quoted the same language in
an opinion joined by Chief Justice Rehnquist and by
Justices White and Scalia. Watson V. Fort Worth Bank &
Trust, 487 U.S. 977, 997. As noted above, Justice
Blackmun's concurring opinion, in which Justices
Brennan and Marshall joined, used the same quotation no
less than three times. Id. at 1001, 1004, 1005; see
also id. at 1006.
Finally, in the discussion of business necessity in
Wards Cove Packing Co. V. Atonio, 490 U.S. 642, 659
(1989), the Court cited the page on which the phrase
"manifest relationship to the employment in question"
appears in Watson, Beazer, and Griggs. Even the
dissenting opinion (Stevens, J., joined by Brennan,
Marshall, and Blackmun, JJ.) quotes this same language
at least three times. Id. at 666, 668 n. 14.
In sum, the phrase "manifest relationship to the employment
in question" correctly states the legal standard to which the
Supreme Court has unwaveringly held since Griggs was first
decided. Apart from the citations in Teal and McDonnell Douglas,
which for the reasons discussed above do not undermine my
conclusion, the phrase you propose to treat as the holding in
Griggs has never even been cited by the Court.
In response to the argument in your June 20 letter, I must
say that it is not surprising that the opinion in Griggs would
contain numerous phrases using the words "job performance" or the
3
like. The facts of that particular case, and the arguments
generated by those facts, naturally led the Court to focus on the
question of whether the employment practices at issue predicted
job performance.
It is equally unsurprising, however, that the Court has
never thought or said that every disparate impact case should be
shoehorned into a narrow analytical framework dictated by the
particular facts at issue in Griggs. That is why the Court has
always relied on the more general language of Griggs -- "manifest
relationship to the employment in question" -- when stating the
legal standard established by Griggs.
To take but one example, this language reflects the fact
that the Griggs Court expressly left open the question "whether
testing requirements that take into account capability for the
next succeeding position or related future promotion might be
utilized upon a showing that such long-range requirements fulfill
a genuine business need. Griggs, 401 U.S. at 432 (emphasis
added) The Court later held unambiguously, in a manner that
would have been difficult or impossible under the definition of
business necessity that you propose, that the business necessity
standard is satisfied if an employer's "legitimate employment
goals
are significantly served by -- even if they do not
require -- [a challenged practice] Beazer, 440 U.S. at 587,
n.31 (Stevens, J., joined by Burger, C.J., and by Stewart,
Blackmun, and Rehnquist, JJ.) (emphasis added). This
understanding of business necessity has been completely
noncontroversial on the Court. Indeed, even the dissenting
opinion in Wards Cove firmly stated: "The opinion in Griggs made
it clear that a neutral practice that operates to exclude
minorities is nevertheless lawful if it serves a valid business
purpose. Wards Cove, 490 U.S. at 665 (Stevens, J., joined by
added). Brennan, Marshall, and Blackmun, JJ., dissenting) (emphasis
Neither does it seem sensible to create a legal rule under
which any employment practice not related to job performance
could give rise to a finding of liability under Title VII. We
know that there are legitimate employment criteria that would not
meet this standard. "No smoking" rules provide one kind of
example. A rule against hiring those with criminal convictions
to work on a police force offers another example. An employer's
decision to reject all applicants who lie on their employment
applications is yet another example.
For over a year, Americans have been told again and again
that the goal of this legislative initiative is to "restore
Griggs. But we have never been told why the language from
Griggs that the Supreme Court has been using for 20 years to
define "business necessity" fails to codify Griggs. Nor have we
been told why this language, or the language from Justice
4
Stevens' 1979 Beazer opinion, is "unacceptable" as an appropriate
legal standard.
In your op-ed in the New York Times yesterday you said "[i]f
ever the devil was in the details he has been present " in this
issue. I could not agree more. This is not a political issue,
or one in which new language can be lightly substituted for well
understood precedent. As the President's chief legal advisor, I
have insisted on a reasoned and substantive review of every
proposal offered to deal with these matters. Before this
Administration and the Congress accept the departure from
precedent and from the stated objective of this legislation which
your proposal incorporates, I think it is only prudent that we
have a clear understanding as to why the definition of "business
necessity" consistently used by the Supreme Court for many years,
and without any objection from any member of the Court, is
suddenly unacceptable as a matter of policy.
Additionally, I must note that any agreement on an
acceptable definition of "business necessity" would be
inseparable from agreement on the related issues raised by
efforts to codify disparate impact analysis and on the other
matters addressed in these bills. As you know from the
conversations that your staff had with Administration attorneys,
S. 1208 -- like H.R. 1 -- suffers in our view from serious
shortcomings in several respects.
I trust that we can continue to discuss these issues with a
view to achieving a constructive outcome.
Sincerely,
Dick Thornburgh
Attorney General
5
06/19/91
12:31
202 224 3324
SEN. RUDMAN D.C.
002
ISSUE #2: DEFINITION OF BUSINESS NECESSITY
OPTION 1
The term "required by business necessity" means
the challenged practice must bear a manifest relationship to
the employment in question.
OPTION 2
The term "required by business necessity" means--
used for
(1) in the case of employment practices primarily
measuring qualifications for or ability to do the job, the
challenged practice must bear a manifest realationship to the
requirements for effective job performance The amployment question.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
The term "requirements for effective job performance"
includes-
(1) the ability to perform the actual work activities
required by the employer for a job or job family; and
(2) any requirement related to work behavior that is
important to the performance of the job, but may not comprise
actual work activities.
CURRENT LANGUAGE
The term "required by business necessity" means--
(1) in the case of employment practices involving
selection, that the practice or group of practices bears a
manifest relationship to the requirements for effective job
performance; and
(2) in the case of other employment decisions not
involving employment selection practices as described in
paragraph (1), the practice or group of practices bears a
manifest relationship to a legitimate business objective of
the employer.
The term "requirements for effective job performance"
includes--
(1) the ability to perform competently the actual work
activities lawfully required by the employer for an
employment position; and
(2) any other lawful requirement, that is important to
the performance of the job, including, but not limited to,
factors such as punctuality, attendance, a willingness to
avoid engaging in misconduct or insubordination, not having a
work history demonstrating unreasonable job turnover, and not
engaging in conduct or activity that improperly interferes
with the performance of work by others.
THE WHITE HOUSE
EXECUTIVE OFFICE OF THE PRESIDENT
FACSIMILE TRANSMITTAL SHEET
DATE:
June 19, 1991
Senator Rudman
TO:
FROM:
John H. Sununu
PHONE:
456-6797
COMMENTS:
Per our conversation --
NUMBER OF PAGES, EXCLUDING COVER SHEET
1
OPTION 2
The term "required by business necessity" means --
(1) in the case of employment practices primarily used for
measuring qualifications for or ability to do the job, the
challenged practice must bear a manifest relationship to the
employment in question.
(2) in the case of employment practices not described in (1)
above, the challenged practice must bear a manifest relationship
to a legitimate business objective of the employer
1
OF
JUST
Office of the Attorney General
DEPA
OM
SEQUITUR
Washington, D. C. 20530
DOMINA
JUSTITIA
June 21, 1991
The Honorable John C. Danforth
United States Senate
Washington, D.C. 20510
Dear Senator Danforth:
Governor Sununu has asked me to respond to your letters of
June 19 and 20. In your first letter, you set out several
phrases used in the course of discussions of "business necessity"
in the opinion in Griggs V. Duke Power Co., 401 U.S. 424 (1971)
and stated that one of these phrases -- "manifest relationship to
the employment in question" -- has been declared unacceptable by
the principal proponents of H.R. 1. You suggested in both
letters that we should instead accept as the holding of Griggs
the phrase "shown to be related to job performance." Finally,
you suggest in your second letter that this phrase be codified as
the definition of "business necessity." As I will explain in
some detail, the one phrase declared "off limits" is the only
phrase that has been rationally defended as the definition of
business necessity under Griggs.
I appreciate your efforts to identify language in Griggs
which the proponents of H.R. 1 will accept. I can imagine your
frustration that the proponents, notwithstanding their insistence
that they are "merely restoring Griggs", are in fact prepared to
accept anything but the legal standard established by Griggs.
One difficulty, however, with your suggestion is that it
rejects two decades of Supreme Court precedent. Indeed, the very
language now deemed unacceptable is the only language that the
Court has always treated as the operative standard: "manifest
relationship to the employment in question." Contrary to your
suggested reading of the case, an unbroken line of Supreme Court
opinions overwhelmingly confirms this proposition. Nor is this
an issue on which there has ever been disagreement among the
Justices.
Scarcely a year after Griggs was decided, Justice
Thurgood Marshall remarked in passing that Griggs "even
placed the burden on the employer 'of showing that any
given requirement must have a manifest relationship to
the employment in question. Jefferson V. Hackney,
406 U.S. 535, 577 (1972) (Marshall, J., dissenting)
(quoting Griggs)
In 1973, in McDonnell Douglas Corp. V. Green, 411 U.S.
792, 805-806, the Court quoted the "related to job
performance" language, but only because it had been
specifically quoted and relied on by the court below
(463 F.2d 337, 352 (1972) The Supreme Court itself
rejected its application to the case before the Court.
See 411 U.S. at 806-807.
In 1975, Justice Stewart, speaking for the Court and
joined by Justices Douglas, Brennan, White, Marshall,
and Rehnquist, said that the Court in Griggs had
"unanimously held" that an employer must "meet[] 'the
burden of showing that any given requirement [has]
a manifest relationship to the employment in
question. Albemarle Paper Co. V. Moody, 422 U.S.
405, 425 (quoting Griggs).
In 1976, the Court again quoted this same language when
stating the Griggs standard. The opinion was written
by Justice Rehnquist, and joined by Chief Justice
Burger (the author of Griggs) and by Justices Stewart,
White, and Powell. General Electric Co. V. Gilbert,
429 U.S. 125, 137 n. 14.
In 1977, Justice Stewart again quoted this same
language from Griggs. He was speaking for the Court,
and his opinion was joined by Justices Powell, Stevens,
Brennan, and Marshall. Dothard V. Rawlinson, 433 U.S.
321, 329.
In 1979, Justice Stevens wrote an opinion for the Court
quoting the same language: "manifest relationship to
the employment in question." He was joined by Chief
Justice Burger (the author of Griggs) and by Justices
Stewart, Blackmun, and Rehnquist. New York Transit
Authority V. Beazer, 440 U.S. 568, 587 n. 31 (quoting
Griggs and citing Albemarle).
In 1982, Justice Brennan's opinion for the Court, which
was joined by Justices White, Marshall, Blackmun, and
Stevens, quoted both formulations. The context makes
it clear, however, that the phrase "manifest
relationship to the employment in question" is the
formulation adopted by "Griggs and its progeny" in
establishing the analytical framework for disparate
impact cases. Connecticut V. Teal, 457 U.S. 440, 446.
This reading of Teal was later confirmed in an opinion
by Justice Blackmun, in which Justices Brennan and
2
Marshall joined. Justice Blackmun quoted the phrase
"manifest relationship to the employment in question,"
attributing it both to Teal and to Griggs. See Watson
V. Fort Worth Bank & Trust, 487 U.S. 977, 1004 (1988)
(Blackmun, J., joined by Brennan and Marshall, JJ.,
concurring in part and concurring in the judgment).
Elsewhere in the same opinion, these Justices quoted
the same language yet again. See id. at 1001.
Justice Powell's dissent in Teal also quoted the phrase
"manifest relationship to the employment in question."
See 457 U.S. at 461 (quoting Dothard's quotation of
Griggs)
Also in 1982, Justice Rehnquist mentioned in an opinion
for the Court that Griggs had held that the employer
must show "a manifest relationship to the employment in
question.' His opinion was joined by Chief Justice
Burger (the author of Griggs) and by Justices White,
Blackmun, Powell, and O'Connor. General Building
Contractors Ass'n V. Pennsylvania, 458 U.S. 375, 383 n.
8.
In 1988, Justice O'Connor quoted the same language in
an opinion joined by Chief Justice Rehnquist and by
Justices White and Scalia. Watson V. Fort Worth Bank &
Trust, 487 U.S. 977, 997. As noted above, Justice
Blackmun's concurring opinion, in which Justices
Brennan and Marshall joined, used the same quotation no
less than three times. Id. at 1001, 1004, 1005; see
also id. at 1006.
O
Finally, in the discussion of business necessity in
Wards Cove Packing Co. V. Atonio, 490 U.S. 642, 659
(1989), the Court cited the page on which the phrase
"manifest relationship to the employment in question"
appears in Watson, Beazer, and Griggs. Even the
dissenting opinion (Stevens, J., joined by Brennan,
Marshall, and Blackmun, JJ.) quotes this same language
at least three times. Id. at 666, 668 n. 14.
In sum, the phrase "manifest relationship to the employment
in question" correctly states the legal standard to which the
Supreme Court has unwaveringly held since Griggs was first
decided. Apart from the citations in Teal and McDonnell Douglas,
which for the reasons discussed above do not undermine my
conclusion, the phrase you propose to treat as the holding in
Griggs has never even been cited by the Court.
In response to the argument in your June 20 letter, I must
say that it is not surprising that the opinion in Griggs would
contain numerous phrases using the words "job performance" or the
3
like. The facts of that particular case, and the arguments
generated by those facts, naturally led the Court to focus on the
question of whether the employment practices at issue predicted
job performance.
It is equally unsurprising, however, that the Court has
never thought or said that every disparate impact case should be
shoehorned into a narrow analytical framework dictated by the
particular facts at issue in Griggs. That is why the Court has
always relied on the more general language of Griggs -- "manifest
relationship to the employment in question" -- when stating the
legal standard established by Griggs.
To take but one example, this language reflects the fact
that the Griggs Court expressly left open the question "whether
testing requirements that take into account capability for the
next succeeding position or related future promotion might be
utilized upon a showing that such long-range requirements fulfill
a genuine business need." Griggs, 401 U.S. at 432 (emphasis
added). The Court later held unambiguously, in a manner that
would have been difficult or impossible under the definition of
business necessity that you propose, that the business necessity
goals standard is satisfied if an employer's "legitimate employment
are significantly served by -- even if they do not
require -- [a challenged practice] Beazer, 440 U.S. at 587,
n.31 (Stevens, J., joined by Burger, C.J., and by Stewart,
Blackmun, and Rehnquist, JJ.) (emphasis added). This
understanding of business necessity has been completely
noncontroversial on the Court. Indeed, even the dissenting
opinion in Wards Cove firmly stated: "The opinion in Griggs made
it clear that a neutral practice that operates to exclude
minorities is nevertheless lawful if it serves a valid business
purpose. Wards Cove, 490 U.S. at 665 (Stevens, J., joined by
Brennan, added). Marshall, and Blackmun, JJ., dissenting) (emphasis
Neither does it seem sensible to create a legal rule under
which any employment practice not related to job performance
could give rise to a finding of liability under Title VII. We
know that there are legitimate employment criteria that would not
meet this standard. "No smoking" rules provide one kind of
example. A rule against hiring those with criminal convictions
to work on a police force offers another example. An employer's
decision to reject all applicants who lie on their employment
applications is yet another example.
For over a year, Americans have been told again and again
that the goal of this legislative initiative is to "restore
Griggs. But we have never been told why the language from
Griggs that the Supreme Court has been using for 20 years to
define "business necessity" fails to codify Griggs. Nor have we
been told why this language, or the language from Justice
4
Stevens' 1979 Beazer opinion, is "unacceptable" as an appropriate
legal standard.
In your op-ed in the New York Times yesterday you said "[i]f
ever the devil was in the details he has been present " in this
issue. I could not agree more. This is not a political issue,
or one in which new language can be lightly substituted for well
understood precedent. As the President's chief legal advisor, I
have insisted on a reasoned and substantive review of every
proposal offered to deal with these matters. Before this
Administration and the Congress accept the departure from
precedent and from the stated objective of this legislation which
your proposal incorporates, I think it is only prudent that we
have a clear understanding as to why the definition of "business
necessity" consistently used by the Supreme Court for many years,
and without any objection from any member of the Court, is
suddenly unacceptable as a matter of policy.
Additionally, I must note that any agreement on an
acceptable definition of "business necessity" would be
inseparable from agreement on the related issues raised by
efforts to codify disparate impact analysis and on the other
matters addressed in these bills. As you know from the
conversations that your staff had with Administration attorneys,
S. 1208 -- like H.R. 1 -- suffers in our view from serious
shortcomings in several respects.
I trust that we can continue to discuss these issues with a
view to achieving a constructive outcome.
Sincerely,
Dick Thornburgh
Attorney General
5
06/24/91
12:46
SENATE TELECOMM DEPT
002
DANFORTH PROPOSAL
The term "required by business necessity" means--
(1) in the case of employment practices primarily
measuring qualifications for or ability to do the job, the
challenged practice must bear a manifest relationship to the
requirements for effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
DOLE STAFF RECOMMENDATION
The term "required by business necessity" means--
(1) in the case of practices that are used by the
employer because they are relevant to job performance, the
challenged practice must bear a manifest relationship to the
requirements for effective job performance.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
DOLE STAFF RECOMMENDATION MODIFIED byDan
The term "required by business necessity" means--
2
(1) in the case of practices that are used as conditions
of employment in or transfer to jobs, the challenged practice
must bear almanifest relationship to the requirements for
effective job performance
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate Business objective of the
employer.
MODIFICATION II by Dan by
The term "required by business necessity" means--
(1) in the case of practices that are used as conditions
of employment in or transfer to jobs, the challenged practice
must bear a demonstrable relationship to successful
performance of the jobs for which it was used.
(2) in the case of employment practices not described in
(1) above, the challenged practice must bear a manifest
relationship to a legitimate business objective of the
employer.
424
OCTOBER TERM, 1970
Syllabus
401 U.S.
424
Opinion of the Court
carl Regal
less they are demonstrably a reasonable measure of job perform-
GRIGGS ET AL. v. DUKE POWER CO.
ance. Pp. 433-436.
420 F. 2d 1225, reversed in part.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
BURGER, C. J., delivered the opinion of the Court, in which all
members joined except BRENNAN, J., who took no part in the con-
No. 124. Argued December 14, 1970-Decided March 8, 1971
sideration or decision of the case.
Negro employees at respondent's generating plant brought this action,
pursuant to Title VII of the Civil Rights Act of 1964, challenging
Jack Greenberg argued the cause for petitioners. With
respondent's requirement of a high school diploma or passing of
him on the briefs were James M. Nabrit III, Norman C.
intelligence tests as a condition of employment in or transfer to
Amaker, William L. Robinson, Conrad O. Pearson, Julius
jobs at the plant. These requirements were not directed at or
LeVonne Chambers, and Albert J. Rosenthal.
intended to measure ability to learn to perform a particular job
George W. Ferguson, Jr., argued the cause for respond-
or category of jobs. While § 703 (a) of the Act makes it an un-
lawful employment practice for an employer to limit, segregate,
ent. With him on the brief were William I. Ward, Jr.,
or classify employees to deprive them of employment opportunities
and George M. Thorpe.
or adversely to affect their status because of race, color, religion,
Lawrence M. Cohen argued the cause for the Chamber
sex, or national origin, § 703 (h) authorizes the use of any pro-
of Commerce of the United States as amicus curiae urging
fessionally developed ability test, provided that it is not designed,
affirmance. With him on the brief were Francis V.
intended. or used to discriminate. The District Court found that
Lowden, Jr., Gerard C. Smetana, and Milton A. Smith.
respondent's former policy of racial discrimination had ended, and
that Title VII, being prospective only, did not reach the prior
Briefs of amici curiae urging reversal were filed by
inequities. The Court of Appeals reversed in part, rejecting the
Solicitor General Griswold, Assistant Attorney General
holding that residual discrimination arising from prior practices
Leonard, Deputy Solicitor General Wallace, David L.
was insulated from remedial action, but agreed with the lower court
Rose, Stanley Hebert, and Russell Specter for the United
that there was no showing of discriminatory purpose in the adop-
States; by Louis J. Lefkowitz, Attorney General, pro se,
tion of the diploma and test requirements. It held that, absent
such discriminatory purpose, use of the requirements was permit-
Samuel A. Hirshowitz, First Assistant Attorney General,
ted, and rejected the claim that because a disproportionate number
and George D. Zuckerman and Dominick J. Tuminaro,
of Negroes was rendered ineligible for promotion, transfer, or
Assistant Attorneys General, for the Attorney General
employment, the requirements were unlawful unless shown to be
of the State of New York; and by Bernard Kleiman,
job related. Held:
Elliot Bredhoff, Michael H. Gottesman, and George H.
1. The Act requires the elimination of artificial, arbitrary, and
Cohen for the United Steelworkers of America, AFL-CIO.
unnecessary barriers to employment that operate invidiously to
discriminate on the basis of race, and, if, as here, an employment
MR. CHIEF JUSTICE BURGER delivered the opinion of
practice that operates to exclude Negroes cannot be shown to be
the Court.
related to job performance, it is prohibited, notwithstanding the
employer's lack of discriminatory intent. Pp. 429-433.
We granted the writ in this case to resolve the question
2. The Act does not preclude the use of testing or measuring
whether an employer is prohibited by the Civil Rights
procedures, but it does proscribe giving them controlling force un-
Act of 1964, Title VII, from requiring a high school edu-
426
OCTOBER TERM, 1970
GRIGGS v. DUKE POWER CO.
427
Opinion of the Court
401 U.S.
424
Opinion of the Court
cation or passing of a standardized general intelligence
Company openly discriminated on the basis of race in
test as a condition of employment in or transfer to jobs
the hiring and assigning of employees at its Dan River
when (a) neither standard is shown to be significantly
plant. The plant was organized into five operating de-
related to successful job performance, (b) both require-
partments: (1) Labor, (2) Coal Handling, (3) Opera-
ments operate to disqualify Negroes at a substantially
tions, (4) Maintenance, and (5) Laboratory and Test.
higher rate than white applicants, and (c) the jobs in
Negroes were employed only in the Labor Department
question formerly had been filled only by white em-
where the highest paying jobs paid less than the lowest
ployees as part of a longstanding practice of giving
paying jobs in the other four "operating" departments in
preference to whites.¹
which only whites were employed.² Promotions were
Congress provided, in Title VII of the Civil Rights Act
normally made within each department on the basis of
of 1964, for class actions for enforcement of provisions
job seniority. Transferees into a department usually
of the Act and this proceeding was brought by a group
began in the lowest position.
of incumbent Negro employees against Duke Power
In 1955 the Company instituted a policy of requiring
Company. All the petitioners are employed at the Com-
a high school education for initial assignment to any
pany's Dan River Steam Station, a power generating
department except Labor, and for transfer from the Coal
facility located at Draper, North Carolina. At the time
Handling to any "inside" department (Operations, Main-
this action was instituted, the Company had 95 employees
tenance, or Laboratory). When the Company abandoned
at the Dan River Station, 14 of whom were Negroes; 13 of
its policy of restricting Negroes to the Labor Department
these are petitioners here.
in 1965, completion of high school also was made a pre-
The District Court found that prior to July 2, 1965,
requisite to transfer from Labor to any other department.
the effective date of the Civil Rights Act of 1964, the
From the time the high school requirement was instituted
1 The Act provides:
to the time of trial, however, white employees hired be-
"Sec. 703. (a) It shall be an unlawful employment practice for
fore the time of the high school education requirement
an employer-
continued to perform satisfactorily and achieve promo-
tions in the "operating" departments. Findings on this
"(2) to limit, segregate, or classify his employees in any way
score are not challenged.
which would deprive or tend to deprive any individual of employ-
The Company added a further requirement for new
ment opportunities or otherwise adversely affect his status as an
employees on July 2, 1965, the date on which Title VII
employee, because of such individual's race, color, religion, sex, or
national origin.
became effective. To qualify for placement in any but
the Labor Department it became necessary to register
"(h) Notwithstanding any other provision of this title, it shall
satisfactory scores on two professionally prepared apti-
not be an unlawful employment practice for an employer
to give and to act upon the results of any professionally developed
2 A Negro was first assigned to a job in an operating department
ability test provided that such test, its administration or action
in August 1966, five months after charges had been filed with the
upon the results is not designed, intended or used to discriminate
Equal Employment Opportunity Commission. The employee, a high
because of race, color, religion, sex or national origin
"
78 Stat.
school graduate who had begun in the Labor Department in 1953,
255, 42 U. S. C. § 2000e-2.
was promoted to a job in the Coal Handling Department.
GRIGGS v. DUKE POWER CO.
OCTOBER TERM, 1970
429
424
401 U.S.
Opinion of the Court
Opinion of the Court
tude tests, as well as to have a high school education.
The Court of Appeals reversed the District Court in
Completion of high school alone continued to render
part, rejecting the holding that residual discrimination
employees eligible for transfer to the four desirable de-
arising from prior employment practices was insulated
partments from which Negroes had been excluded if the
from remedial action.4 The Court of Appeals noted,
incumbent had been employed prior to the time of the
however, that the District Court was correct in its con-
new requirement. In September 1965 the Company be-
clusion that there was no showing of a racial purpose or
gan to permit incumbent employees who lacked a high
invidious intent in the adoption of the high school di-
school education to qualify for transfer from Labor or
ploma requirement or general intelligence test and that
Coal Handling to an "inside" job by passing two tests—
these standards had been applied fairly to whites and
the Wonderlic Personnel Test, which purports to measure
Negroes alike. It held that, in the absence of a discrim-
general intelligence, and the Bennett Mechanical Com-
inatory purpose, use of such requirements was permitted
prehension Test. Neither was directed or intended to
by the Act. In so doing, the Court of Appeals rejected
measure the ability to learn to perform a particular job
the claim that because these two requirements operated
or category of jobs. The requisite scores used for both
to render ineligible a markedly disproportionate number
initial hiring and transfer approximated the national
of Negroes, they were unlawful under Title VII unless
median for high school graduates.³
shown to be job related.5 We granted the writ on these
The District Court had found that while the Company
claims. 399 U. S. 926.
previously followed a policy of overt racial discrimination
The objective of Congress in the enactment of Title
in a period prior to the Act, such conduct had ceased.
VII is plain from the language of the statute. It was to
The District Court also concluded that Title VII was
achieve equality of employment opportunities and re-
intended to be prospective only and, consequently, the
impact of prior inequities was beyond the reach of cor-
The Court of Appeals ruled that Negroes employed in the Labor
rective action authorized by the Act.
Department at a time when there was no high school or test require-
ment for entrance into the higher paying departments could not
The Court of Appeals was confronted with a question
now be made subject to those requirements, since whites hired con-
of first impression, as are we, concerning the meaning of
temporaneously into those departments were never subject to them. -
Title VII. After careful analysis a majority of that
The Court of Appeals also required that the seniority rights of those
court concluded that a subjective test of the employer's
Negroes be measured on a plantwide, rather than a departmental,
intent should govern, particularly in a close case, and
basis. However, the Court of Appeals denied relief to the Negro
that in this case there was no showing of a discriminatory
employees without a high school education or its equivalent who
were hired into the Labor Department after institution of the
purpose in the adoption of the diploma and test require-
educational requirement.
ments. On this basis, the Court of Appeals concluded
5 One member of that court disagreed with this aspect of the
there was no violation of the Act.
decision, maintaining, as do the petitioners in this Court, that Title
VII prohibits the use of employment criteria that operate in a
3 The test standards are thus more stringent than the high school
racially exclusionary fashion and do not measure skills or abilities
requirement, since they would screen out approximately half of
necessary to performance of the jobs for which those criteria are
used.
all high school graduates.
415-649 o 72 33
430
OCTOBER TERM, 1970
GRIGGS v. DUKE POWER CO.
431
Opinion of the Court
401 U.S.
424
Opinion of the Court
move barriers that have operated in the past to favor
an identifiable group of white employees over other em-
person be hired simply because he was formerly the sub-
ployees. Under the Act, practices, procedures, or tests
ject of discrimination, or because he is a member of a
neutral on their face, and even neutral in terms of intent,
minority group. Discriminatory preference for any
cannot be maintained if they operate to "freeze" the
group, minority or majority, is precisely and only what
Congress has proscribed. What is required by Congress
status quo of prior discriminatory employment practices.
is the removal of artificial, arbitrary, and unnecessary
The Court of Appeals' opinion, and the partial dissent,
barriers to employment when the barriers operate in-
agreed that, on the record in the present case, "whites
vidiously to discriminate on the basis of racial or other
register far better on the Company's alternative require-
impermissible classification.
ments" than Negroes. 420 F. 2d 1225, 1239 n. 6. This
Congress has now provided that tests or criteria for
consequence would appear to be directly traceable to
employment or promotion may not provide equality of
race. Basic intelligence must have the means of articu-
opportunity merely in the sense of the fabled offer of milk
lation to manifest itself fairly in a testing process. Be-
to the stork and the fox. On the contrary, Congress has
cause they are Negroes, petitioners have long received
now required that the posture and condition of the job-
inferior education in segregated schools and this Court
seeker be taken into account. It has-to resort again to
expressly recognized these differences in Gaston County
the fable-provided that the vessel in which the milk is
V. United States, 395 U. S. 285 (1969). There, because
proffered be one all seekers can use. The Act proscribes
of the inferior education received by Negroes in North
not only overt discrimination but also practices that are
Carolina, this Court barred the institution of a literacy
fair in form, but discriminatory in operation. The touch-
test for voter registration on the ground that the test
stone is business necessity. If an employment practice
would abridge the right to vote indirectly on account of
1
which operates to exclude Negroes cannot be shown to be
M
race. Congress did not intend by Title VII, however,
related to job performance, the practice is prohibited.
to guarantee a job to every person regardless of qualifi-
On the record before us, neither the high school com-
cations. In short, the Act does not command that any
pletion requirement nor the general intelligence test is
shown to bear a demonstrable relationship to successful
6 In North Carolina, 1960 census statistics show that, while 34%
performance of the jobs for which it was used. Both
of white males had completed high school, only 12% of Negro males
were adopted, as the Court of Appeals noted, without
had done SO. U.S. Bureau of the Census, U.S. Census of Popula-
meaningful study of their relationship to job-performance
tion: 1960, Vol. 1, Characteristics of the Population, pt. 35, Table
ability. Rather, a vice president of the Company testi-
47.
Similarly, with respect to standardized tests, the EEOC in one
fied, the requirements were instituted on the Company's
case found that use of a battery of tests, including the Wonderlic
judgment that they generally would improve the over-
and Bennett tests used by the Company in the instant case, resulted
all quality of the work force.
in 58% of whites passing the tests, as compared with only 6% of
The evidence, however, shows that employees who
the blacks. Decision of EEOC, CCH Empl. Prac. Guide, T 17,304.53
have not completed high school or taken the tests have
(Dec. 2, 1966). See also Decision of EEOC 70-552, CCH Empl.
continued to perform satisfactorily and make progress
Prac. Guide, T 6139 (Feb. 19, 1970).
in departments for which the high school and test cri-
432
OCTOBER TERM, 1970
Opinion of the Court
424
401 U.S.
Opinion of the Court
teria are now used.' The promotion record of present
The facts of this case demonstrate the inadequacy of
employees who would not be able to meet the new criteria
broad and general testing devices as well as the infirmity
thus suggests the possibility that the requirements may
of using diplomas or degrees as fixed measures of capa-
15
not be needed even for the limited purpose of preserving
bility. History is filled with examples of men and women
the avowed policy of advancement within the Company.
who rendered highly effective performance without the
In the context of this case, it is unnecessary to reach the
conventional badges of accomplishment in terms of cer-
tificates, diplomas, or degrees. Diplomas and tests are
question whether testing requirements that take into ac-
7,
useful servants, but Congress has mandated the com-
count capability for the next succeeding position or
monsense proposition that they are not to become masters
related future promotion might be utilized upon a show-
1
of reality.
ing that such long-range requirements fulfill a genuine
The Company contends that its general intelligence
business need. In the present case the Company has
tests are specifically permitted by § 703 (h) of the Act.8
made no such showing.
That section authorizes the use of "any professionally
The Court of Appeals held that the Company had
developed ability test" that is not "designed, intended
adopted the diploma and test requirements without any
or used to discriminate because of race
(Empha-
"intention to discriminate against Negro employees."
sis added.)
420 F. 2d, at 1232. We do not suggest that either the
The Equal Employment Opportunity Commission,
District Court or the Court of Appeals erred in examining
having enforcement responsibility, has issued guidelines
the employer's intent; but good intent or absence of dis-
interpreting § 703 (h) to permit only the use of job-
criminatory intent does not redeem employment proce-
related tests. The administrative interpretation of the
dures or testing mechanisms that operate as "built-in
3
headwinds" for minority groups and are unrelated to
8 Section 703 (h) applies only to tests. It has no applicability
measuring job capability.
to the high school diploma requirement.
9 EEOC Guidelines on Employment Testing Procedures, issued
The Company's lack of discriminatory intent is sug-
August 24, 1966, provide:
gested by special efforts to help the undereducated em-
"The Commission accordingly interprets 'professionally developed
ployees through Company financing of two-thirds the
ability test' to mean a test which fairly measures the knowledge
cost of tuition for high school training. But Congress
or skills required by the particular job or class of jobs which the
directed the thrust of the Act to the consequences of
applicant seeks, or which fairly affords the employer a chance to
employment practices, not simply the motivation. More
measure the applicant's ability to perform a particular job or class
of jobs. The fact that a test was prepared by an individual or
than that, Congress has placed on the employer the
organization claiming expertise in test preparation does not, without
burden of showing that any given requirement must
more, justify its use within the meaning of Title VII."
have a manifest relationship to the employment in
The EEOC position has been elaborated in the new Guidelines on
question.
Employee Selection Procedures, 29 CFR § 1607, 35 Fed. Reg. 12333
(Aug. 1, 1970). These guidelines demand that employers using
7 For example, between July 2, 1965, and November 14, 1966, the
tests have available "data demonstrating that the test is predictive of
percentage of white employees who were promoted but who were
or significantly correlated with important elements of work behavior
not high school graduates was nearly identical to the percentage of
which comprise or are relevant to the job or jobs for which candidates
nongraduates in the entire white work force.
are being evaluated." Id., at § 1607.4 (c).
GRIGGS
Opinion of the Court
401 U.S.
424
Opinion of the Court
Act by the enforcing agency is entitled to great deference.
See, e. g., United States V. City of Chicago, 400 U.S. 8
these assurances, Senator Tower of Texas introduced an
(1970); Udall V. Tallman, 380 U. S. 1 (1965); Power
amendment authorizing "professionally developed ability
Reactor Co. V. Electricians, 367 U. S. 396 (1961). Since
tests." Proponents of Title VII opposed the amendment
the Act and its legislative history support the Commis-
The
because, as written, it would permit an employer to give
sion's construction, this affords good reason to treat the
any test, "whether it was a good test or not, SO long as
guidelines as expressing the will of Congress.
it was professionally designed. Discrimination could ac-
Section 703 (h) was not contained in the House ver-
tually exist under the guise of compliance with the stat-
sion of the Civil Rights Act but was added in the Senate
ute." 110 Cong. Rec. 13504 (remarks of Sen. Case).
during extended debate. For a period, debate revolved
The amendment was defeated and two days later Sen-
around claims that the bill as proposed would prohibit
ator Tower offered a substitute amendment which was
all testing and force employers to hire unqualified per-
adopted verbatim and is now the testing provision of
sons simply because they were part of a group formerly
§ 703 (h). Speaking for the supporters of Title VII, Sen-
subject to job discrimination. Proponents of Title VII
ator Humphrey, who had vigorously opposed. the first
sought throughout the debate to assure the critics that
amendment, endorsed the substitute amendment, stating:
the Act would have no effect on job-related tests. Sen-
"Senators on both sides of the aisle who were deeply
ators Case of New Jersey and Clark of Pennsylvania,
interested in title VII have examined the text of this
comanagers of the bill on the Senate floor, issued a
memorandum explaining that the proposed Title VII
quotation from an earlier Clark-Case interpretative memorandum
"expressly protects the employer's right to insist that
addressed to the question of the constitutionality of Title VII. The
any prospective applicant, Negro or white, must meet the
Senators said in that memorandum:
applicable job qualifications. Indeed, the very purpose
"There is no requirement in title VII that employers abandon
of title VII is to promote hiring on the basis of job
bona fide qualification tests where, because of differences in back-
qualifications, rather than on the basis of race or color."
ground and education, members of some groups are able to perform
110 Cong. Rec. 7247.11 (Emphasis added.) Despite
better on these tests than members of other groups. An employer
may set his qualifications as high as he likes, he may test to deter-
10 The congressional discussion was prompted by the decision of
mine which applicants have these qualifications, and he may hire,
a hearing examiner for the Illinois Fair Employment Commission
assign, and promote on the basis of test performance." 110 Cong.
in Myart V. Motorola Co. (The decision is reprinted at 110 Cong.
Rec. 7213.
Rec. 5662.) That case suggested that standardized tests on which
However, nothing there stated conflicts with the later memorandum
whites performed better than Negroes could never be used. The
dealing specifically with the debate over employer testing, 110 Cong.
decision was taken to mean that such tests could never be justi-
Rec. 7247 (quoted from in the text above), in which Senators Clark
fied even if the needs of the business required them. A number
and Case explained that tests which measure "applicable job
of Senators feared that Title VII might produce a similar result.
qualifications" are permissible under Title VII. In the earlier mem-
See remarks of Senators Ervin, 110 Cong. Rec. 5614-5616; Smathers,
orandum Clark and Case assured the Senate that employers were
id., at 5999-6000; Holland, id., at 7012-7013; Hill, id., at 8447;
not to be prohibited from using tests that determine qualifications.
Tower, id., at 9024; Talmadge, id., at 9025-9026; Fulbright, id., at
9599-9600; and Ellender, id., at 9600.
Certainly a reasonable interpretation of what the Senators meant,
11 The Court of Appeals majority, in finding no requirement in
in light of the subsequent memorandum directed specifically at
Title VII that employment tests be job related, relied in part on a
employer testing, was that nothing in the Act prevents employers
from requiring that applicants be fit for the job.
GILLETTE v. UNITED STATES
437
136
OCTOBER TERM, 1970
Syllabus
Opinion of the Court
401 U.S.
amendment and have found it to be in accord with the
GILLETTE v. UNITED STATES
intent and purpose of that title." 110 Cong. Rec. 13724.
The amendment was then adopted.¹² From the sum of
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
the legislative history relevant in this case, the conclu-
FOR THE SECOND CIRCUIT
sion is inescapable that the EEOC's construction of
10
§ 703 (h) to require that employment tests be job related
No. 85. Argued December 9, 1970-Decided March 8, 1971*
comports with congressional intent.
Petitioner in No. 85, who was convicted for failure to report for
Nothing in the Act precludes the use of testing or
induction, and petitioner in No. 325, who sought discharge from
measuring procedures; obviously they are useful. What
the armed forces upon receipt of orders for Vietnam duty, claim
Congress has forbidden is giving these devices and mech-
exemption from military service because of their conscientious
anisms controlling force unless they are demonstrably a
objection to participation in the Vietnam conflict, as an "unjust"
war, pursuant to § 6 (j) of the Military Selective Service Act of
reasonable measure of job performance. Congress has
1967. That section provides that no person shall be subject to
not commanded that the less qualified be preferred over.
"service in the armed forces of the United States who, by reason
the better qualified simply because of minority origins.
of religious training and belief, is conscientiously opposed to par-
Far from disparaging job qualifications as such, Congress
ticipation in war in any form." Petitioners also challenge the
has made such qualifications the controlling factor, so
constitutionality of § 6 (j) as construed to cover only objectors
that race, religion, nationality, and sex become irrelevant.
to all war, as violative of the Free Exercise and Establishment of
What Congress has commanded is that any tests used
Religion Clauses of the First Amendment. Held:
1. The exemption for those who oppose "participation in war in
must measure the person for the job and not the person
any form" applies to those who oppose participating in all war
in the abstract.
and not to those who object to participation in a particular war
The judgment of the Court of Appeals is, as to that
only, even if the latter objection is religious in character. Pp.
portion of the judgment appealed from, reversed.
441-448.
2. Section 6 (j) does not violate the Establishment Clause of
MR. JUSTICE BRENNAN took no part in the considera-
the First Amendment. Pp. 448-460.
tion or decision of this case.
(a) The section on its face does not discriminate on the basis
of religious affiliation or belief, and petitioners have not shown the
12 Senator Tower's original amendment provided in part that a
absence of neutral, secular bases for the exemption. Pp. 450-453.
test would be permissible "if
in the case of any individual who
(b) The exemption provision focuses on individual conscien-
is seeking employment with such employer, such test is designed to
tious belief and not on sectarian affiliations. P. 454.
determine or predict whether such individual is suitable or trainable
(c) There are valid neutral reasons, with the central em-
with respect to his employment in the particular business or enter-
phasis on the maintenance of fairness in the administration of
prise involved
110 Cong. Rec. 13492. This language indicates
military conscription, for the congressional limitation of the ex-
that Senator Tower's aim was simply to make certain that job-
emption to "war in any form," and therefore § 6 (j) cannot be
related tests would be permitted. The opposition to the amendment
said to reflect a religious preference. Pp. 454-460.
was based on its loose wording which the proponents of Title VII
feared would be susceptible of misinterpretation. The final amend-
*Together with No. 325, Negre V. Larsen et al., on certiorari to
ment, which was acceptable to all sides, could hardly have required
the United States Court of Appeals for the Ninth Circuit.
less of a job relation than the first.
UNITED STATES SENATE
WASHINGTON, D. C.
JOHN C. DANFORTH
MISSOURI
June 20, 1991
Honorable John Sununu
Chief of Staff to the President
The White House
Washington, D. C. 20500
Dear John:
Yesterday, you said that everyone agrees that
the objective of civil rights legislation should be
to return to the Supreme Court's decision in Griggs
V. Duke Power Co., and that the definition of
"business necessity" should be lifted verbatim from
that decision. I think that your suggestion is very
important, and that it offers the possibility of a
real breakthrough in resolving this problem.
The issue dealt with in Griggs is explained by
Chief Justice Burger in the first sentence of the
Court's opinion:
We granted the writ in this case to resolve
the question whether an employer is prohibited
by the Civil Rights Act of 1964, Title VII, from
requiring a high school education or passing of
a standardized general intelligence test as a
condition of employment in or transfer to jobs
when (a) neither standard is shown to be
significantly related to successful job
performance, (401 U.S. at 425-426, emphasis
supplied)
The Court then proceeds to analyze the
employment standards before it. With respect to two
tests administered to employees, the Court finds
that:
Neither was directed or intended to measure
the ability to learn to perform a particular job
or category of jobs. (401 U.S. at 428)
The Court then analyzes Title VII as follows:
- 2 -
The touchstone is business necessity. If
an employment practice which operates to exclude
Negroes cannot be shown to be related to job
performance, the practice is prohibited.
On the record before us, neither the high
school completion requirement nor the general
intelligence test is shown to bear a
demonstrable relationship to successful
performance of the jobs for which it was
used. Both were adopted, as the Court of
Appeals noted, without meaningful study of their
relationship to job-performance ability.
Rather, a vice president of the Company
testified, the requirements were instituted on
the Company's judgment that they generally would
improve the overall quality of the work force.
The evidence, however, shows that employees
who have not completed high school or taken the
tests have continued to perform satisfactorily
and make progress in departments for which the
high school and test criteria are now used.
(401 U.S. at 431-432, emphasis supplied)
Further interpreting Title VII, the Court quotes
the following EEOC guidelines as "expressing the will
of Congress:"
The Commission accordingly interprets
"professionally developed ability test" to mean
a test which fairly measures the knowledge or
skills required by the particular job or class
of jobs which the applicant seeks, or which
fairly affords the employer a chance to measure
the applicant's ability to perform a particular
job or class of jobs. (401 U.S. 433 n. 9,
emphasis supplied)
Finally, at the end of the opinion, the Court
summarizes its holding.
What Congress has forbidden is giving these
devices and mechanisms controlling force unless
they are demonstrably a reasonable measure of
job performance. Congress has not commanded
that the less qualified be preferred over the
- 3 -
better qualified simply because of minority
origins. Far from disparaging job qualifica-
tions as such, Congress has made such
qualifications the controlling factor, so that
race, religion, nationality, and sex become
irrelevant. What Congress has commanded
is that any tests used must measure the person
for the job and not the person in the abstract.
(401 U.S. at 436, emphasis supplied)
John, as you can see, a fair reading of Griggs
is not a matter of lifting one isolated sentence out
of context. From the beginning of the opinion to the
end, Griggs is about job performance. Therefore, it
is clear to me that the Court best defines business
necessity at 401 U.S. 431. Using Griggs language
verbatim, the legislation could provide that:
The term "required by business necessity"
means--shown to be related to job performance.
Let me know what you think.
Sincerely,
Jack
CC: Senator Robert Dole