Agenda for 4th Class Handouts Slides Readings Name plates Review of Last Class Legislative History of Title VII (continued) Griggs v Duke Power

Assignment for Next Class Review any questions from today’s assignment that we don’t discuss in class Read United Steelworkers v. Weber handout Questions to think about / Short papers Everyone should be prepared to discuss all the questions on pages 9-12 of the United Steelworkers v. Weber handout Mandatory writing Group 5. Q1 & Q5 Group 6. Q2 & Q6 Group 7. Q3 & Q7 Group 8. Q4 & Q8 Although groups 5-8 usually have writing due on Monday, this time they have writing due on Wednesday. Otherwise there would be an imbalance between the number of writing assignments each group is required to do. Optional writing -- All questions that are not mandatory Writing assignments are due Wednesday, 1:45

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

Review of Last Class II Legislative History Legislators act strategically Southern Democrats tried to strengthen Civil Rights Bill, in order to alienate Republicans and defeat the bill Northern Democrats tried to weaken the bill, to ensure Republican support It is often hard to figure out people’s motives Was Senator Smith joking when he introduced the amendment forbidding gender discrimination? Was he trying to defeat the bill? Did he genuinely want to protect women from discrimination? Maybe he wanted to do all of these things? Class list for preferences and sign in Digital voice recorder Nameplates and marker Handouts of PowerPoint slides IP chart

Legislative History of Title VII 4. What do you think was Congress’s intent was in amending the Civil Rights Act of 1964 to ban discrimination based on sex? 5. When, on June 11, the Senators debated Mr. Tower’s proposed amendment about job testing, what were the principal arguments in favor and against the amendment? See Congressional Record pp. 13942-13504).

Legislative History of Title VII 6. What was difference between the amendments introduced by Senator Tower on June 11 and June 13, 1964? You can find the relevant texts on Congressional Record page 13492 column 2 and page 13724 column 1. 7. Why do you think the amendment proposed by Senator Tower on June 11 was rejected, but the amendment proposed by Senator Tower on June 13 was agreed on? 8. How would the amendments proposed by Senator Tower on June 11 and June 13 apply to the test in Myart v. Motorola described above. Can you argue that the test would not violate either amendment? Can you argue that the test would violate at least one of the amendments? For these purposes, assume that (a) the test in Myart was a general intelligence test, like an IQ test, (b) it was not designed to discriminate against African Americans or other minorities, (c) Motorola did not adopt it with the intent of discriminating against African Americans or other minorities, (d) African Americans and other minorities did worse on the test than whites, and (e) the relationship between test scores and job performance had been studied and demonstrated for whites, but had not been studied for African Americans and other minorities.

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

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

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

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