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#17 Griggs v. Duke Power Company
30 Plays1 month ago
In this episode we re-argue the Supreme Court case Griggs v. Duke Power Company.
In the wake of the Civil Rights Act prohibiting discrimination in employment, a major company changed its hiring and promotion policies and implemented alternate requirements. Black employees, who largely did not advance, complained of continuing discrimination. The Equal Employment Opportunity Commission investigated and substantiated their allegations. The employer denied.
The question before the court: did the company’s promotion requirements violate the Civil Rights Act?
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Transcript
Podcast Introduction
00:00:01
Speaker
Hello, and welcome to Relitigated, the show where five friends who are absolutely not lawyers attempt to retry a real Supreme Court case.
Episode Focus: Griggs v. Duke Power
00:00:10
Speaker
I'm your host, Nikki, and this is episode 17, Griggs versus Duke Power Company decided in 1971.
00:00:19
Speaker
Two quick notes before we get started. First, as always, we try our best to represent the facts and decisions in the case as accurately as possible, but we're not lawyers and nothing in this episode should be taken as legal advice.
00:00:32
Speaker
Second, when we talk about the Duke Power Company in this episode, we are commenting on a specific historical event. We are not discussing the current policies, operations, or leadership of the company.
Hosts & Format Introduction
00:00:44
Speaker
With that out of the way, let's start the show.
00:00:48
Speaker
No, everything everything is awesome. You need to be strategic with your diversity. Yes. Yes. And speaking of, hi there. Welcome to the Relitigated Podcast.
00:01:01
Speaker
I'm your host, Nikki, and I'm joined by my co-host, Jarrett. Hello, Jarrett. Hello. We also have with us three friends who will be role-playing as our justices.
00:01:12
Speaker
First, we have Associate Justice Mike. Hello. Hello. Next, we have Associate Justice Serena. Hey. And lastly, we have our Chief Justice, Sarah.
00:01:26
Speaker
Thank you for having me, yet again, and somehow. If you're new to the show, here's how this works. Jarrett and i have selected a real Supreme Court case and our justices do not know what case we have selected.
Case Background: Griggs v. Duke Power
00:01:39
Speaker
Jarrett will introduce the case to us and walk us through the facts so we can all get familiar with the details. The justices are free to ask factual questions during this time and we will answer as best as we can.
00:01:53
Speaker
Next, we'll move into oral arguments where Jarrett will role play as the petitioner and I will role play as the respondent. We each get seven minutes to make our case during which the justices can interrupt us and ask probing questions.
00:02:09
Speaker
When the arguments are over, the justices will deliberate and deliver their own opinions. The final rulings do not need to be unanimous. Majority opinion wins. Even if two or more justices agree in principle, they can disagree as to why.
00:02:24
Speaker
Once we've had our fun with our mock hearing, Jarrett and I will reveal what the Supreme Court really decided and talk about how we feel about the actual results and why this case matters. Sound good to everyone? Yep, sounds great.
00:02:39
Speaker
Totes. Awesome. I'm going to turn it over to Jared. All right. The case before the court for this episode is Greggs v. Duke Power Company.
00:02:51
Speaker
Now, our story starts in Eden, North Carolina at the Dan River Stream Station power plant owned by, you guessed it, the Duke Power Company. Around the time of the case, the power plant was separated into five divisions—labor, coal handling, operation, maintenance, and laboratory and tests.
00:03:13
Speaker
According to company policy, white employees were eligible to work in all five divisions, while black employees were only allowed to work in the labor division, where the highest paid position earns less than the lowest paid positions in the other divisions.
00:03:29
Speaker
Eventually, this overtly discriminatory policy was changed. Gone was the restriction of black employees solely to the labor division. Instead, the company decided that joining any division other than the labor division, either through direct hiring or transfer, would require a high school diploma.
00:03:50
Speaker
This means if you worked in the labor division and wanted to transfer to any other division, you were required to have your high school diploma. Any employee already working in one of the non-labor divisions who did not have a high school diploma was grandfathered in, so they kept their jobs and could be promoted within their unit.
00:04:10
Speaker
The high school diploma was only required if they wanted to transfer to a different division. This policy continued for a decade until passage of the Civil Rights Act.
Title VII and Employment Practices
00:04:21
Speaker
Now, the Civil Rights Act is a very long law, but what we care about for this episode is part of Title VII of the Act, which includes the following provisions.
00:04:31
Speaker
Quote, It shall be an unlawful employment practice for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individuals' race, color, religion, sex, or national origin.
00:04:54
Speaker
Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test, provided that such test, its administration or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin.
00:05:19
Speaker
To summarize, employers cannot discriminate against employees because of race, color, religion, sex, or national origin, but they can use tests developed by professionals in making employment decisions, provided that those tests and the administration of those tests don't violate the previous being mentioned to clause that you cannot discriminate.
00:05:43
Speaker
That make sense? Yes. Crystal clear. and Okay. Okay. Following passage of the law, the Duke Power Company amended their policies. Now, a basic test was instituted in order to be hired into the labor division, while passage of two standardized tests, specifically the Wunderlich and Bennett tests, was required in lieu of a high school diploma for the other divisions.
00:06:09
Speaker
So to join labor, you didn't need a high school diploma, and you just had to pass a very simple test. While to join the other divisions, you would need a high school diploma, or if you didn't have a high school diploma, you had to pass both of these standardized tests.
00:06:25
Speaker
Again, for employees without a high school diploma already working in a non-labor division, they were allowed to keep their jobs, and they remained eligible for promotion within their unit without having to pass the tests.
00:06:39
Speaker
As for transferring, a high school diploma was still required until the white employees who didn't have high school diplomas protested. So then the policy was changed so that if you didn't have a high school diploma, you could transfer. You just had to pass the the two standardized tests.
00:06:55
Speaker
In response to these changes, 13 of the black employees of the company filed a complaint with the Equal Employment Opportunity Commission, which is also known as the EEOC, alleging discriminatory labor practices.
00:07:10
Speaker
The EEOC sent two investigators to speak with individuals at the site of the power plant and with company leaders. According to their report, they found few satisfactory answers to their questions.
00:07:22
Speaker
While the company did eliminate segregated locker rooms immediately after the inspector's visit, it did not prevent the EEOC from endorsing the complaints of the Black power plant workers.
00:07:34
Speaker
So the EEOC agreed that there was still discrimination. Now, it's important to understand that the Civil Rights Act was a controversial and difficult bill to get passed.
00:07:47
Speaker
and that for the sake of getting it through Congress, a lot of things were left out of it that civil rights advocates would have liked to see. One of the things that was dropped was giving the EEOC c enforcement capabilities.
00:08:02
Speaker
Instead, according to the Act, the EEOC could only, quote, endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion, end quote.
00:08:20
Speaker
Any real enforcement mechanisms were reserved for the Justice Department. So the EEOC could not bring a case against somebody. They could just argue with them to be better.
00:08:32
Speaker
So following endorsement of the claims of the Black employees, the EEOC could only meet with company officials and try to influence them to change their ways.
Legal Actions and Court Progression
00:08:43
Speaker
This was delayed due to the EEOC's workload, and when a meeting was finally had, it was not productive. As a result, a lawyer associated with the Legal Defense Fund filed a discrimination suit as a class action on behalf of the Black workers at the power plant.
00:09:00
Speaker
The district court rejected the findings of the EEOC, arguing that since two black employees had obtained roles that were previously held by white employees, that Duke Power was no longer discriminating, and that while past discrimination may have impacts in the future, the company's current policies were not responsible for the effects of prior policies.
00:09:25
Speaker
Additionally, using tests to determine eligibility for roles was ruled to be reasonable. The Legal Defense Fund appealed the district court ruling to the Fourth Circuit Court of Appeals, which ruled two to one in favor of the Duke Power Company, though not without significant discussion over more than five months between the three justices.
00:09:49
Speaker
Following the second defeat and after some discussion of their own about whether it was worth appealing to the Supreme Court, the Legal Defense Fund did ultimately opt to appeal. And so the case is before our court to answer the following question.
Discrimination Allegations
00:10:03
Speaker
Did the Duke Power Company's employment policies violate Title VII of the Civil Rights Act? We will now take factual questions.
00:10:15
Speaker
what What was the exact complaint of the 13 black employees? Like what was the, what was the discrimination that they were alleging? They were alleging that the requirement of a high school diploma, as well as the tests were specifically put in place in order to segregate the black employees from the white employees and continue to make sure that white employees got opportunities that black employees did not.
00:10:46
Speaker
Because at the time of this case, if you look at educational attainment, it was much more likely for a white employee to have that high school diploma than for a black employee to have the high school diploma.
00:11:00
Speaker
And the the tests, would it be less likely for them to be able to pass the tests also? I'm i'm just not familiar with these. tests here. That's the contention.
00:11:12
Speaker
Gotcha. I've not taken them. 100% actually do not know, but I do know that that was the argument. The Wonderlic was intended to be a measure of general intelligence.
00:11:25
Speaker
um And the, ah what was it? The Bennett was a measure of like mechanical ability. Okay. So the Bennett makes sense and the Wonderlic sounds a little sus.
00:11:36
Speaker
Don't they... make quarterbacks take the wonderlick test it's I don't know I know it's a general aptitude test that you know so it anybody could theoretically take it or it could be administered to anybody it's like what it like I guess we don't know. is it just Do they ask you facts? Is it problem solving? I'm just curious now. Give me a second. and In the meantime, I think Serena might have had a question. so We should all take this test at the end of the podcast.
00:12:10
Speaker
My question was like around like that around the test anyways like one this is like a national standard but i guess it is and then i also wanted to know like i think jared had alluded to it before but like what is the what was like the percentage breakdown of like the current employees that have high school diplomas like obviously it's probably leaning more towards uh white people having more diplomas, but just wanted to know like number wise, what was that breakdown that was available?
00:12:44
Speaker
I don't know that we have that. I can tell you, sorry, going, taking a step back. ah So the wonder like is basically it's a, it's a supposed to be sort of a short, a brief test of,
00:12:55
Speaker
ah general cognitive ability and like problem solving aptitude. um And it's for ah prospective employees. So it's not restricted to any particular occupation. It's just sort of this very quick, you know, take this and um without having to go through the entire rigmarole of a formal um IQ test. Here's like a quick and dirty estimate.
00:13:22
Speaker
Okay, so it's like a baby IQ test. I mean, ah ah very much a bait maybe like a fetal IQ test. Like super fetal? um i definitely didn't just Google and I'm not taking a 25-question practice.
00:13:36
Speaker
I think we all should definitely take this test. and and and there no The episode needs to end with everybody comparing scores. Yeah. Also, apparently, I guess they do give it to NFL players.
00:13:47
Speaker
Yeah, that's what I thought. I think it's like an... app I know for quarterbacks... at one point had to take it. I don't know if they still have to take it. Okay. my First question they gave me was, it was a, it was a word math problem. Frankie wants to tell us.
00:14:03
Speaker
I'm telling you the question. Well, in the, in the interest of test security, you know, um, then you mentioned math. I'm out. I just love the idea of the NFL being like, yeah, yeah, yeah, We know they gave you a degree, but we also know they didn't teach you anything.
00:14:23
Speaker
Can you run the ball? So we we don't want an example question. I want to come to the test fresh. Another question was, um did the power plant give any more reasoning why like not the labor unit needed to have the high school diploma?
00:14:42
Speaker
Was there any like specific reasoning associated to the job that would require ah high school diploma versus the labor not? I did not see anything specific from the company in my research, but I will note that there were people who worked in those other divisions who did not have high school diplomas.
00:15:04
Speaker
And i don't know that I can find um your other question regarding... high school education rates. Yeah. At this particular time in this particular place.
00:15:15
Speaker
Oh, for the general population? No, just at that. ah Oh, at the company. Yeah. um I think it would be fair to use general rates because we're talking about workforce, right?
00:15:29
Speaker
Yeah. Guys, this this test is really easy. Get your score and then tell us. I think I i think i could go pro.
00:15:41
Speaker
yeah
00:15:45
Speaker
ah so I'm going to be on the Giants.
00:15:49
Speaker
you're You're going to Disney World.
00:15:53
Speaker
I don't think I have any other factual questions at this time. Trying to reread all the case info to make sure that my brain is actually computing properly.
00:16:06
Speaker
ah You know, because I'm not a lawyer, so it takes me a little bit of time to weed through the legalese. Don't worry, the rest of us are lawyers, so we got you. Yeah, yeah.
00:16:19
Speaker
And then i guess like how soon after ah they had made the adjustments post-Civil Rights Act, like did, like when the white employees started complaining, did they like remove the restriction?
00:16:36
Speaker
Like, were they just like... Yeah, so it was, i think within a year of the passing of the Civil Rights Act, they added the, you could take the test instead of having a high school degree.
00:16:49
Speaker
And it was very shortly after that came out that the white employees were who wanted to transfer were like, wait, wait, wait, I should be able to just pass the test to transfer as well.
00:17:03
Speaker
Now that transfer only mattered between departments that weren't the labor department. So if you were in the labor department and you wanted to transfer, you still had to have the high school diploma or the, like it was the same,
00:17:18
Speaker
so justly amazinging
00:17:21
Speaker
Why am I so confused right now? I'm really confused too.
00:17:27
Speaker
Well, which thing I think, I think it was confusing. Okay. I think what's confusing to me is the fact that the rules at the company keep changing pretty consistently. So I'm trying to keep up with that.
00:17:39
Speaker
And I'm also, they're getting better each time. It does sound like they're getting better each time. um But so I think, Go back again to the original complaint of those 13 black employees. You said it was because they they feel it was discriminatory.
00:17:59
Speaker
Like, which part of it did they feel was discriminatory? Like, the high school diploma and test requirement for them if they were working in the labor department? Or high school diploma or test requirement, right? Because it's either or. Right, or. both It's either or.
00:18:13
Speaker
Yeah, the fact that that was required to ah ah to for career advancement, basically, out of the department. And then there was also the fact that prior to the, you know the original restriction was if you are Black, you can only work in one division.
00:18:33
Speaker
exactly. White people can go and work in any division. Then they said, okay, we're getting rid of the the race component, but now we're instituting the high school diploma requirements.
00:18:44
Speaker
Now, there were people, there were white people working in the other four divisions who did not have a high school diploma. who could still get promotions, get higher wages, move between divisions.
00:18:58
Speaker
Right. They were grandfathered in. Yes. Whereas now the black employees who were were stuck in labor. Okay. So they changed the rules. Because they saw white employees who had the same level of education as them who were allowed allowed it an opportunity that they were still not allowed to have.
00:19:19
Speaker
Right. And therefore they weren't integrated. when the high school diploma or the test came into play, right? So is the question maybe After that comes into play, could, if you were a Black person in labor, be like, okay, let me take the test, and then if you take the test, you advance?
00:19:36
Speaker
Or is that not allowed? Yes, but the... You you could, but also the ah the allegation was that the tests were developed in such a way that The test was racist. was much that the the test was also racist, basically. Basically, the test was the test was used in such a way. Okay.
00:20:02
Speaker
Now I think I got you. Yeah. Goddammit, Wunderlich. Yeah. By the way, educational attainment rates, according to census.gov in the, well, I can't tell you the year, um but in the time period that we are looking at,
00:20:18
Speaker
oh white individuals are approximately twice as likely to have a college degree as black individuals. Okay. College degree. I said, I mean, high school degree.
00:20:31
Speaker
high school We're all having a day today. I'm going to guess the the year of this case is 2028.
00:20:40
Speaker
yeah ah Correct. In reference to the civil rights act of 2024. Okay. Yeah. um The next civil rights act is going to be to like take away things away.
00:20:58
Speaker
The civil rights act, the revenge. something but Well, there were one, two, three, four, five, six, seven, eight civil rights acts that I can pull up immediately. Okay.
00:21:13
Speaker
I don't have any further factual questions. I'm pretty sure I understand what's going on here. And I don't like it. the So i'm I'm ready to weigh arguments and enact jurisprudence upon the land.
00:21:31
Speaker
You sure you're not ready to immediately make up your mind and steadfastly cling to that opinion for the rest of the episode? I mean... it's a bad look for anybody to side with the company. Okay.
00:21:47
Speaker
yeah We'll hear the facts, but like, right. So yes, really is her answer. I don't have a law degree. I don't have to be. So really, so really this hinges on justices, Serena and Mike.
00:22:03
Speaker
Yes. I mean, it's associate justices underneath the chief justice. Okay.
00:22:12
Speaker
so I'm noticing there's i' noticing there's no unions involved here.
00:22:18
Speaker
Should we make a union? Can the court declare a union? That doesn't seem like something a court should be able to do. i don't know This is make-believe, Mike. Okay. then like Yes, and everyone gets a pint of ice cream.
00:22:35
Speaker
Oh, all right. You unionize and you get ice cream. Sour Court goes full reparations.
00:22:46
Speaker
What else do you want? Name it. White men can continue to play the blues. Black people get reparations. and And? And pet snakes. Everyone gets pet snakes.
00:22:59
Speaker
Oh, man. So much to cut out of this episode. Yeah.
00:23:05
Speaker
Okay, well, um Jarrett will be representing the petitioners. So ah when he is ready, we will begin. i have seven minutes on the clock and
Arguments on Discriminatory Practices
00:23:20
Speaker
take it away. All right.
00:23:24
Speaker
Thank you very much, Ms. Chief Justice, and may it please the court. I ask you today to affirm that which the Equal Employment Opportunity Commission has already made plain in their report, that the employment practices of the Duke Power Company are discriminatory against their black employees in violation of Title VII of the Civil Rights Act.
00:23:48
Speaker
According to the act, it is illegal for an employer to quote, limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee based on things like race, gender, or religion.
00:24:08
Speaker
It is our contention that the company has enacted policies specifically to limit and segregate their employees by race. Sure, they've modified their policies as of late so that they're not just coming out and saying black people are only allowed to work in the labor division and make less like they used to because they used to.
00:24:29
Speaker
But that's exactly what they're trying to do. The reason Duke power requires a high school diploma is because the majority of black employees do not have high school diplomas, while most white employees do.
00:24:43
Speaker
By requiring a high school diploma, they are placing black employees into one group that deprives them of opportunities, and white employees get put into a separate group that has all of the opportunities.
00:24:56
Speaker
It's not as perfect a dividing line as saying black versus white, but it's as close as they can get. Now, we're not saying that low high school education rates among black workers is Duke Power Company's fault.
00:25:13
Speaker
That is the result of a long trail of injustices from slavery through Jim Crow. But the purpose of the civils rights of the Civil Rights Act is to address these inequities, and companies like Duke Power are failing to meet the moment.
00:25:30
Speaker
The company's intention is all the more obvious because they have had white employees with no high school diploma for years, over a decade.
00:25:41
Speaker
There is clearly no actual need to have a high school degree. And when they did require that white employees have a degree in order to transfer, they got rid of that policy when those white employees protested.
00:25:56
Speaker
So what is the point of making it a requirement if you can be successful in the role without having the high school dec degree? There is only one reason, because it is the closest analog that they could get to dividing the population along racial lines, black, no degree, white degree.
00:26:18
Speaker
As for the two tests that the company instituted, these tests are also not related to job success or job skills. They're just another obstacle placed in the way of equality.
00:26:30
Speaker
They know that segregation and the education system has failed the black community, and they are leveraging that reality again put their black workers into a bucket that they are unlikely to escape from.
00:26:44
Speaker
Employment practices such as these fly in the face of the Civil Rights Act, especially Title VII. Separate is not equal. but by finding ways to deny opportunities for higher pay and better jobs, they keep this community down.
00:27:01
Speaker
Finally, it's important to note that whether the company intended to discriminate or not ultimately does not and should not matter. Their current policies may not sound to the average person so bad.
00:27:15
Speaker
Needing a high school diploma might seem fair, maybe even well-intended. It's not, of course. I've already shown to you based off the fact that ah for over a decade, white employees have done just fine in the job without that requirement.
00:27:31
Speaker
But whether it seems fair doesn't change the fact that it uses a facet of our history and our social context to segregate their workers into buckets by race and that that is a violation of the law.
00:27:45
Speaker
Thank you. i yield to questions. Wow. I'm going to give out a really rare. Good job, Jarrett. ah Oh, man. Yeah.
00:27:57
Speaker
I'm good. I'm done. Yeah. No, honestly, we retire. Podcast achieved. Leave on a high note. Yeah. pump Thank you all for listening. Walk out of the room into the sunset. If this mic was not mounted to my desk, I would drop it.
00:28:12
Speaker
but um Yeah. Great job. um Clearly, I'm not biased. as I said before. and don't really have any questions, though. I think that was a pretty solid argument.
00:28:26
Speaker
um
00:28:29
Speaker
What say you, the rest of my court? I agree. I'm in the same camp. I think also, like had the EEOC had the power that ah that people initially had wanted, they would have been able to enforce this.
00:28:47
Speaker
And Yeah, no notes. don't think I have any questions. I will just go for a clarification, I guess. um What was the EEOC's recommendation ah to rectify the situation? Because don't know if we mentioned that or not.
00:29:06
Speaker
That's a good question. I don't have the specific answer. I know that they had ruled that the ah that the company's practices were discriminatory on their face and that they needed to be needed to be changed for our part.
00:29:24
Speaker
me as a representative of the group, we would like to see the barriers taken down. We would like to see the company write job descriptions and rate requirements for roles based off of what is actually needed to do the role. So if you don't need a high school diploma to do a role in the operations group,
00:29:45
Speaker
then don't require it. Don't require it just because it's in the operations group and everyone in the operations group has to have one. Write the requirements that are specific to the the actual content of the job that you're trying to fill.
00:30:00
Speaker
That's what I would like to see.
00:30:03
Speaker
Okay. And if there's people in positions that are unqualified, well, I guess that's not an issue because everyone working there already didn't have high school degrees and other stuff. So... I mean, some people didn't have high school degrees. I want to say everyone didn't have it, but yeah.
00:30:18
Speaker
So if you're unqualified for role because you would you would genuinely not be able to be successful in that role, that's fine. But these are roles where people were already proven to be successful.
00:30:29
Speaker
So it's clearly ah requirement just for the sake of being discriminatory. Yeah, I gotcha.
00:30:38
Speaker
I believe my time is up. Or I will keep going. Nope, your time is Okay, there we go. Yeah, no, your time's totally up. Okay.
00:30:51
Speaker
Well, thank you. I yield to opposing counsel, and I put seven minutes on the clock for them whenever they begin. All right, let's listen to the bad guys.
00:31:04
Speaker
Wow. Before opposing counsel starts, Nikki, I just want to say I hate to see you on this side of history, you know? It's, uh, I now feel like I know a little bit more about what it's like to be Jarrett.
00:31:18
Speaker
Yeah. i was I was on another case with you where you were on the shady side. this a new you, Nikki? I don't know. What's going on?
00:31:31
Speaker
Miss Chief Justice, and may it please the court. Employees in the operations and the maintenance departments are supposed to keep complex machinery efficient, reliable, and safe.
00:31:46
Speaker
The laboratory department has to be able to perform water analysis, coal analysis, and track plant operations. The test department has to maintain the accuracy of instruments, gauges, and control devices.
00:32:05
Speaker
People in the coal handling department have to be able to read and comprehend manuals for complex machinery. They also have to operate the machinery in a safe and satisfactory manner.
00:32:17
Speaker
This is all done for the purpose of producing electricity and energy. This is complex work. This is for a necessary basic utility, and the company is required by law to maintain adequate and continuous service.
00:32:33
Speaker
All of these jobs require skill, judgment, and intelligence. And as technology progresses, the business operation is becoming more complex. In recent years, the company has been dealing with roadblocks posed by individuals without education, and this causes issues with employee selection, hiring, transfer, and promotion.
00:32:58
Speaker
Therefore, the company decided to acquire general intelligence and mechanical skills to operate a major power plant for applicants and employees seeking promotion.
00:33:09
Speaker
Records from Congress shows that the legislators discussed general intelligence and aptitude tests and that they intended to protect the system where employees can can give general ability and intelligence tests to determine the trainability of their employees.
00:33:25
Speaker
These tests were developed and designed by professional psychologists. The Wunderlich was designed to measure general intelligence and the Bennett mechanical comprehension test was designed to measure aptitude and understanding of mechanical concepts and principles.
00:33:40
Speaker
The tests are sound. They measure what they purport to measure and measure it well. They are not intended or designed to engage in racial discrimination. The EEOC has held that an employer's requirement of particular educational qualifications don't violate the Civil Rights Act.
00:33:59
Speaker
An employer can set qualifications, test to determine which applicants have the qualifications, and hire and assign and promote on the basis of test performance. The lower court found that the high school education requirement serves a genuine business purpose, and the tests were, quote, a reasonably satisfactory substitute.
00:34:20
Speaker
employers have to be allowed to be able to use objective, generally accepted standards of intelligence and educational achievement or ability ah in order to make their decisions.
00:34:31
Speaker
And actually, implementing these objective measures are superior to using uninformed, subjective, and arbitrary judgments in making employment decisions. The educational requirement comes from a legitimate business purpose.
00:34:45
Speaker
The company took it on to improve the quality of the workforce. If employees are unable to read, write, and reason through plant operations, they're not going to be able to keep the plant running, nor will they be able to advance in their careers.
00:34:59
Speaker
And as a matter of fact, some employees have refused promotion and transfer because they did not feel that they could do the work required. The company also provides ways for employers to meet the educational requirements if they don't.
00:35:11
Speaker
So there are there are some options here. An employee can take the tests and get a passing score, or they could use ah our tuition refund program that covers 75% of the costs of obtaining a diploma or GED, or they can just obtain their qualifications independently.
00:35:29
Speaker
There's no intention to discriminate against any employee whatsoever. And there's no requirement in Title VII that employers abandon professionally developed tests ah just because of differences in backgrounds and education and just because some groups are able to perform better on these tests than members of other groups.
00:35:49
Speaker
The differences in performance are due to historical differences in socioeconomic status between groups, and that has nothing to do with the workplace and the company's obligations to provide power to the public.
00:36:01
Speaker
This employer was using the tests for a legitimate business purpose, so the practice isn't discriminatory. As long as there's a business reason behind the tests and it's not discriminatory in intent, a business should be allowed to use it.
00:36:13
Speaker
If an employer is excluded from using an objective test in these decisions, then the subject of decision-making occurs and that bears greater potential for discrimination. And with that, I will yield to questions.
00:36:27
Speaker
Yeah, I have a question. and Why were some people able to have and keep their jobs in those four other units without having a high school diploma?
00:36:42
Speaker
You said that they refused. They were ah grandfathered in ah under the company policy. So they were still capable of ah doing the job without the high school diploma. Correct.
00:36:55
Speaker
Correct. They were grandfathered in. ah Yes. And these were skills that they could learn on the job, correct?
00:37:08
Speaker
ah Presumably, although without having the data about their trainability, about their their aptitude and their intelligence, it's really hard to say. What was the quality before the high school diploma and all of the other ah qualifications came to be, what were the qualifications for the positions above labor?
00:37:35
Speaker
I don't suppose, I don't think there was a, there was an education requirement. However, once again, as technology has moved on and as operations have become more complex, ah that has been taken on to improve the workforce.
00:37:51
Speaker
What is the timeframe between the first time the high school diploma, the initial qualification went in place to now? um i want to say it was 10 years.
00:38:06
Speaker
I want to say,
00:38:09
Speaker
think I have to go back and double check, but I'm, I'm going to say probably 10 years.
00:38:16
Speaker
We're at time, but I know Sarah had a question. Yeah. I had i had a question. um It has left my brain.
Justices' Discussion on Policy Implications
00:38:28
Speaker
so i think actually maybe it was closer to like five or six years.
00:38:34
Speaker
This injustice stops now. Standardized tests out the window. Ban them for everybody. Also, ban high school.
00:38:49
Speaker
I mean, I think we're on our way for that. Yeah, it sounds like Trump department's doing that. Yeah. just I think, Nikki, I think we just ah just went straight into deliberation. Oh, yeah. No, the judge the justices were ah were ready and we're making pronouncements. All right. Let's let's do it.
00:39:07
Speaker
Order in my court. a You guys feel free to turn back into clerks. Fire everybody. Fire everybody starting anew. Clean slate.
00:39:21
Speaker
Uh, nobody has any schooling. I don't want to know about their cognitive abilities. I don't want to know about skills. We are going on tests of strength. Uh, I'm not power plant. I mean, if there's no school, everyone should just be working for their own electricity. i think. Right. but all What tends to your own fire, you know?
00:39:45
Speaker
We're going to have a one-mile test. Wait, we're going to do the fitness gram paper test. Obstacle course.
00:39:54
Speaker
This society should be based on strength, speed, and agility. Not cognitive abilities or high school diplomas. Not race or age. Sarah's describing the plot of The Hunger Games. Okay.
00:40:14
Speaker
ah I say that as a clerk. um Excuse me, Chief Justice. i just um ah That's the Hunger Games. Yeah. Yeah.
00:40:25
Speaker
No, the fucking Hunger Games. That's right, clerk. We are hungry. Bring us food. Yes, yes. Terribly sorry. Yeah. What do you know about Peter Malark? how How dare i yeah no Less talking, more bringing me a lobster and far guac. Come on.
00:40:44
Speaker
Run a lap, you know? Okay. ah Order. I'm, I still, how many times have I done this? I don't have a gavel. Adam has a powdered wig. What do I have? Nothing.
00:40:54
Speaker
My words. Yeah. Okay. Useless. Yeah. Honestly. um Okay. So couple things are standing out to me initially.
00:41:07
Speaker
Um, first is that I am really biased. Um, in this case, probably towards Jared's argument.
00:41:21
Speaker
I and don't have a law degree. This is fake. Okay. I can say what I want. And I'm a little bit biased towards Jared's argument um because I do feel like there is, there has been some unfairness at this company towards black employees.
00:41:44
Speaker
um However, little part of Nikki's argument is kind of like the little devil on my shoulder, like screeching into my ear right now saying,
00:41:58
Speaker
what's wrong with a little cognitive test here and there, right? It's just a light cognitive test. Hey, clerk. What's the big idea, right? It's jagging at me, right?
00:42:08
Speaker
What's wrong with a little cognitive test? How long would it actually take? High school is four years. The Wanderlick test is probably, i don't know, Michael, you started to take it. Ten minutes? like so Ten too many questions it is, I guess.
00:42:20
Speaker
ah You saw it. Well, I asked 25 questions. I don't know how long it usually is. Yeah, from a factual perspective, I think it's like 20 minutes or... um okay so yeah in my oh god part of me feels like that but is exactly here's one of the questions and dog is to veterinarian as blank is to dentist and your multiple choice options are stomach leg teeth and eyes okay um
00:42:54
Speaker
Is it all multiple choice? From what I can tell based on the practice ones, I'm seeing yes. That seems accessible. i
00:43:07
Speaker
but From the list below, select all of the quadruped mammals that might be found as a pet in a typical American family home. The options are dog,
00:43:19
Speaker
giraffe amster talk Cat and goldfish. On the basis of your expertise, Associate Justice Mike, but what would you say?
00:43:36
Speaker
I'm going to hamster, dog, and cat. um you know i've had ah i know a few people that have had giraffes, but you know it's not typical. and ah Goldfish are not co quadruped mammals.
00:43:49
Speaker
They want to be. How do you know that?
00:43:54
Speaker
Because I know that. Because I got the last question right about what a dog is to a veterinarian as a blank is to a dentist.
00:44:06
Speaker
Okay. Undefeated on this test so far. Yeah. I mean, based on this so far, I mean, you would be just a prime candidate for maintenance. Also, our plant like like, if this is the test, then...
00:44:23
Speaker
you don't need any qualifications to work at any of link at this job. um
00:44:30
Speaker
I mean, yeah, I guess you could see how the test is like, there is, ah there is some like it's logic questions, right. Which is a little bit of problem solving. There's some big words in there, right. Which requires a general, you know, some additional vocabulary than maybe somebody who had never been to school ever in their life would know.
00:44:52
Speaker
um
00:44:55
Speaker
don't Serena, what do you think? Oh, I'm sorry with Jared all the way. i mean, yeah the policy that was people get grandfathered is racism. like that's like That was the... Definitely is.
00:45:10
Speaker
And so then we're just building upon that. I mean i think i think to get to Nikki's point, the people that were grandfathered in should have to take the test. Exactly. Yeah. Given that they weren't, I mean, this is clearly just like ah making the the... I cannot articulate well, but I'm going pause there. We're all having a day. The fact that people are grandfathered in is Nikki defeating her own arguments.
00:45:39
Speaker
Yeah. And like the fact that clearly for many, many years, no high school diploma was needed at all. And now all of a sudden, right after the Civil Rights Act, now we need a high school diploma that clearly does not oh associate with particular skills for those divisions.
00:46:01
Speaker
I don't know. Seems kind of fishy to me. Yeah, it's like definitely a little bit too convenient. um Yeah, the grandfathering in.
00:46:11
Speaker
And but when the white workers complained, then that policy went away. But if Whenever the black employees complained, they had to bring up a lawsuit. So I don't know.
00:46:24
Speaker
Something's not That being said, if i was working in a position for 25 years and then they were like, well, we need to qualify for this job you've been doing good for 25 years, I would comply because this is American. I'm scared of looting my health care, but I would not be happy about it.
00:46:41
Speaker
Yeah, I... Yeah, I think the grandfathering in point is... like too big to ignore. Like, I feel like if they never did that, it, I don't know, maybe wouldn't seem as cut and dry.
00:46:58
Speaker
Here's the thing, guys. This is, is this like, all right, on- The grandfathering in might make more sense if you had been there for a certain, like if you had been working this job for 15 years and meeting performance requirements, then I guess you could be grandfathered in on experience, but- I just feel like when we, for those of you who haven't listened to Buck v. Bell case, spoilers alert.
00:47:24
Speaker
um I just feel like when we talked about Buck v. Bell, the entire court was like, yeah, no, forced sterilization. That's bad. There's no way that our Supreme Court would have ruled that that was okay.
00:47:38
Speaker
And then sure enough, the worst imaginable, the worst outcome imaginable happened. So a part of me here is like, well, this seems pretty cut and dry. Like the policies are built off of a system of racism.
00:47:52
Speaker
They are negatively affecting and discriminating against both the black employees and have been for years. Seems like it would make sense, right? But oh, no, this is US Supreme Court probably is like, no, this is fine. We love the power plant. Let them do whatever they want.
00:48:06
Speaker
Bring back segregation. Yeah. um The only thing I'll say as clerk is two things. Number one no metagaming. And number two, we're not asking you to guess what the real Supreme Court decided. We're asking you to reason through for yourself as if you were the justice.
00:48:25
Speaker
Well, I mean, you are correct. The Buck v. Bell case is an atrocity. I just ask I have a little bit of and it's never been formally overruled. See, I so forgive me if I have a little bit of pause. OK.
00:48:39
Speaker
yeah if If you haven't listened to it, go back earlier in the season, listen to our interview with Dr. Lombardo. it's he he is amazing, and the episode is amazing.
00:48:52
Speaker
It's full of all the information you don't want.
00:48:56
Speaker
Then come on back and finish this one. Yeah, also feel like how different would this case be if or would this even be a case if the EEOC c could enforce things?
00:49:08
Speaker
You know? Like, if this company really felt like they would get in trouble for continuing to have, like, these layers of discrimination,
00:49:23
Speaker
would they have kept doing it? I don't know. so sign up but Also, they dropped their the diploma thing for transferring between units. So, again, also, clearly the high school diploma...
00:49:37
Speaker
requirement is not needed. It's really just a barrier to entry. But is our ruling going to be that you should they should get rid of requirements to work there? I think the so ruling should be ah should be applied to like all departments, the same like same requirements across all departments because The divide is just that the labor unit has different requirements versus any other ones.
00:50:07
Speaker
True. so if you are going to have any requirements, it should be the same across the board, whatever that may be.
00:50:15
Speaker
Yeah. I mean, but maybe, but like if the jobs are really different and one really is just... move coal from there to there. I feel like if the jobs are really different, it's like, it's kind of like how today when you go to get a job, like most jobs, and I'm just speaking from somebody who works in corporate America, most jobs, they require you, and they require you to have like a high school diploma or a GED as like a baseline like regardless of anything, or they say, a you know, a bachelor's or associate's degree is required. Like it doesn't, like, it doesn't matter where you work. Like you need to have a high school diploma.
00:50:52
Speaker
That's, I mean, high school diplomas are obviously way more accessible these days than they probably were back whenever this case happened. um But then like, as the jobs get more technical and nuanced,
00:51:04
Speaker
Maybe, you know, then the job descriptions need to ah reflect like, hey, as well as having a high school diploma, you need to have a master's degree in, don't know, computer science.
00:51:17
Speaker
Like, so I'm not saying that you need to have a master's degree to work in coal handling at the freaking power plant. But like, there should be, i think, job, to the the company should be required to create job descriptions that,
00:51:35
Speaker
match the expertise or the skills that are exactly needed for that specific job instead of just like isolating one random unit of the company.
00:51:49
Speaker
um i don't know if that made sense. My stream of consciousness is just kind of going and I'm blacking out. We might be losing the coal power plant segment of our listening population here.
00:52:03
Speaker
Hope we're not allocatating alienating anybody. ah Drill baby drill?
00:52:12
Speaker
I don't think you drill for coal. I don't know how things work. Okay. Don't ask me. Okay. What else?
00:52:24
Speaker
What else are thinking? Soap. so like I feel like it's discriminatory, but I wonder like to the question of did it violate the Civil Rights Act?
00:52:35
Speaker
It's where they can get us. Yeah, base I mean, it's kind of hard. It's hard to... to like If you just look at this... i feel like they're doing a letter of the law, but not spirit of the law.
00:52:51
Speaker
Yeah, for sure. I think if you just look at this in a vacuum outside of like the segregation that used to be at the company, it would be easier to just be like, yeah, of course. like For some jobs, you need to have a high school diploma. And for the labor department, you don't. doesn't matter.
00:53:09
Speaker
But because this was... The optics are just so terrible. Like, it's like what Serena said. Like, you never said jack shit about needing a diploma or having to do a cognitive test prior to the civil rights movement.
00:53:24
Speaker
So... Well, no, I think they did, right?
00:53:29
Speaker
It was shows after. Yeah, no, it was after. That's, that's the whole thing. It was like but before the civil rights movement and they, the first, that first change in company policy, they essentially said that if you're black, the only place that you can work in is the labor division.
00:53:48
Speaker
And so they had no opportunity to move in any other department of the company so the high school The high school thing was before the Civil Rights Act, in which you could say that's discriminatory because more white people are likely to have high school.
00:54:03
Speaker
yeah After the Civil Rights Act is when they said, okay, high school diploma or passage of the exam. Okay, wait, yes, you're right. I was getting ahead of myself.
00:54:14
Speaker
I was thinking, I missed the middle there. Just cut everything out. Honestly, let's restart the episode.
00:54:23
Speaker
Just for some reason, that this is could be the timeline is confusing me. there are There are two changes to policy. The first policy, which was there for years, was white people can work anywhere. Black people can only work in the power division.
00:54:39
Speaker
Sorry, the labor division. Yes. 10 years before the approximately 10 years before the Civil Rights Act was when the high school diploma went into effect.
00:54:52
Speaker
Wait, was it? Yeah. Hang on. Oh, wait. wait the Hang on. Was that what happened? I thought it was after. yeah then And then after the Civil Rights Act is when they said, because it's because the Civil Rights Act Title VII says um
00:55:13
Speaker
you can administer a test, then they said, okay, well, then we're going to um to add a test to the requirements.
00:55:27
Speaker
Which think is technically following the law. and then but and all But in every instance, when they added a new requirement, nobody who currently worked in a role was ever asked to prove that they had that requirement.
00:55:45
Speaker
So put devil's advocate here, though, if you were in a job and then suddenly a new policy came that a certain certification or something had to be a required qualification for the job that you had been doing like for 10 years.
00:56:02
Speaker
i can't I can't answer that question as clerk. I can only answer that question. I'm asking it to the ether and the other judges. In corporate America, I would say we get like yearly like ah trainings and we get new ones that we have to do if they think it applies to our job.
00:56:19
Speaker
Yeah, that's accurate. So that kind of Still goes with the argument that the grandfathering is still on the basis of racism, which would allow them to get away with discriminatory practices.
00:56:36
Speaker
Yeah. No, I definitely agree with you that the grandfathering is suspicious is suspicious and racist. um I think the timeline of when these changes happened are kind of throwing me off now.
00:56:51
Speaker
Like they enacted the high school diploma requirement way before the civil rights act happened. Um, which I mean, I guess it doesn't mean that it wasn't a discriminatory. I mean, obviously it was. the thing That's when it was discriminatory.
00:57:10
Speaker
Yeah. That's when it was discriminatory. Yeah. um And then after the Civil Rights Act, they allowed the high school diploma or the test, the two tests. um Like, at what point can you pass, like, okay, you've been doing this job good for 10 years, like, here but here but take this test.
00:57:33
Speaker
Yeah. Like that, if I was an employee, i would that would piss me Yeah, it would, it would piss me off too. but I do feel like it would make things more, would absolutely make things more fair if the company was like.
00:57:47
Speaker
And if the the goal of the company, like Nikki was saying, was to improve the entire workforce, then yeah. yeah If you're trying to improve the entire workforce, that would include people that had been there for 10 plus years.
00:57:59
Speaker
Right. New ones going forward. Yeah. Yeah. You would want to, I mean, and who knows like what type of on the job training this company was doing, right? Like who knows? Maybe they were doing like a yearly coal handling. Yeah, guess that is something that's missing. yeah Also, if someone had been doing the job for 10 plus years and sucked, then you could find out that they sucked through this and get rid of them.
00:58:22
Speaker
Yeah. Presumably they would have been fired before then if they sucked, you know? Maybe, but maybe not if they were just, you know, a white guy that was but personality higher. Yeah, could have been good old boys club, I suppose. Yeah, good old boys club. um Yeah, I think like a part of me is like, I do think that the addition of the the two cognitive tests does a little bit help with those who weren't able to get a high school diploma. Yeah.
00:58:57
Speaker
And maybe like if you're looking forward, like if this policy was enacted today, anybody who applies to work at the company in any non-labor division moving forward would have maybe a little bit more of an equal chance because you don't have to have a high school diploma. You can, you can just pass these two cognitive tests, which take like an hour total and have a better shot at getting the job.
00:59:25
Speaker
um But it just kind of screws over everybody that had worked there before, including the 13 black employees that raised this case, right? Like, it doesn't really help them if they're already working there.
00:59:41
Speaker
Like, they're still victims of this racist system. maybe Maybe it helps people moving forward to get new jobs, but ah it doesn't really help people that are already there that are maybe stuck or have been stuck.
00:59:57
Speaker
Yeah, I guess. So what was this? I know we said it way earlier, but what was the specific complaint of the 13 black employees? that the ah Originally, the high school diploma was put in place as a way when they got rid of the they were like, well, we're getting rid of the requirement that you know, only the black people can only work here.
01:00:22
Speaker
But then they added this high school requirement that had never existed before. And they said that was just a way of them having the same policy, but saying it in a different way.
01:00:33
Speaker
And then when the Civil Rights Act came out, the They couldn't get away with just doing that, and they had to add this test, but that the test itself was not necessarily a predictor of success in the role.
01:00:48
Speaker
So the test was just added just to meet the basic letter of the law, but it actually served to tighten the and restrictions around the Black population at the company.
01:01:04
Speaker
ah where it would it would seem that it's like, oh, we're trying to give them more opportunity, but were these tests developed with large numbers?
01:01:14
Speaker
Were these tests developed in Ivy League schools done in a way ah that included large numbers of ah ah Black individuals who had the standard level of high school education attainment in the country?
01:01:30
Speaker
ah So was was the test really representative Yeah, that's a great point. Okay. I've, I've decided on my, I've decided on my final answer on this based on that.
01:01:41
Speaker
I think so. Well, let me go back to one more thing from Nikki's case. You said that the company, uh, offered educational opportunities. Um, yeah.
01:01:56
Speaker
Yeah, so people can take the test um and get a passing score or use a tuition refund program that covers most of the cost of getting a diploma.
01:02:11
Speaker
Or the employer can just go get the qualification. The employee can go get the qualifications themselves. I feel like... I almost feel like... ah a big Like what Jarrett was saying, like a big part of the issue here too is like, what even is the Wunderlich test? And what's the other one? The Bennett test?
01:02:30
Speaker
but Yeah. yeah What are they? What samples of population are they based on? Like, are these tests even fair to begin with? Like, I don't think as a rule, it's outlandish for companies to come up with policies that say you need to have a certain degree or pass these certain certification tests in order to have this job.
01:02:53
Speaker
Like, I think that makes perfect sense, especially to Nikki's argument. When you work in an industry where the technology is constantly advancing, I think that's fair. And I think that's still very applicable today. I don't want a doctor without a degree to operate on me. Right.
01:03:06
Speaker
Um, But like, is the wonder like, are the wonder like in Bennett tests actually? I mean, don't know.
01:03:18
Speaker
Like, are they now I'm like, I, from the beginning i was like, I think they're probably accessible, but now like, wait, are, are they though? Like, can just like your average person on the street who doesn't have a high school degree that needs a job? Like, are they able to pass?
01:03:33
Speaker
These types of tests with flying colors, do they indicate any sort of aptitude in actually being able to do maintenance at a power plant? Like,
01:03:45
Speaker
ah I don't know. gives me a long The Bennett one you said was ah like a mechanical exam? I've never heard of that one. ah The mechanical, the Bennett mechanical comprehension test?
01:04:00
Speaker
at the at the risk of being more lawyer than clerk, um when we were talking about the like, well, somebody who may not have had a high school diploma, but got the job before that and was grandfathered in, you know, um well, ah maybe they have to take it.
01:04:22
Speaker
Maybe we'll make them take it again. If that person failed, the Wunderlich test, wouldn't that show that the Wunderlich test also is not a predictor of success in the role?
01:04:38
Speaker
And so also clearly not actually doing what the employer says it's doing, which is trying to get the best candidate if you could take someone who failed it and teach them on the job to do the job satisfactorily.
01:04:53
Speaker
Yeah. That makes sense. I mean, it's just... It was all wrong to begin with at the Duke Power Company.
01:05:06
Speaker
i like that Serena decided like a while ago and is just waiting for you all to figure it out. I'm trying to flush out everything. Like I'm trying to go to go down every little nook and cranny.
01:05:18
Speaker
Like... how like like yeah Yeah, I'm trying not to make – I'm trying not to use my heart. trying to use my brain, not my heart. Yes, I'm trying to use my – I'm trying to use every ounce of brain power have.
01:05:31
Speaker
and also I'm trying – Don't you know best justices decide and then work backwards to rationale? That's kind of – okay. I mean, i came into this being like I am 100% on Jarrett's side, which is weird to say. And then – and then A little Nikki made a very tiny bit of compellingness, had a little bit of compellingness in her argument. And I was like, wait, hold on.
01:05:53
Speaker
Like maybe it's because she didn't wait until the last second to write her argument. Yeah.
01:06:00
Speaker
I feel like the Duke Power Company absolutely is racist. I feel like it's racist. The policies they used to have. It's a power plant in North Carolina before the Civil Rights Act. Yes, it was racist.
01:06:15
Speaker
It's riddled with racism. It's absolutely an old boys club. like
01:06:22
Speaker
But is is implementing the Wonderlic and the Bennett, because that's what we're talking about, right? Like, when you say, like, did the Duke Power Company's employment policies violate the Title VII of the Civil Rights Act? The employment policies that we're looking at is is the most recent policy change, right? Which is the high school diploma or the cognitive tests.
01:06:46
Speaker
It's too shitty, but I feel like it might actually be in line with what the law is. It's my hang-up.
01:06:56
Speaker
No, it still feels racist to me. I don't i don't like it. I said it feels shitty. Look, there was one episode of this podcast where I had to like side with the cops. It's kind of giving me PTSD. Yeah, you're really having to look inward. Who are you on the inside? Okay.
01:07:21
Speaker
um All right. I think it's time for some closing arguments unless anybody else has anything else to deliberate.
01:07:32
Speaker
i think I've made my decision. Please. Yeah. Start us off. I think I'm going to side on Jarrett's the The petitioner's, petitioner? Petitioner, not partitioner, the petitioner's side. We're not lawyers. We can't speak.
01:07:50
Speaker
but um Because I don't think it's necessarily the fact that there's a requirement, but it seems like the requirements don't necessarily correlate to the actual qualifications needed for the positions.
01:08:13
Speaker
I mean, which I guess someone could argue is that the company is just being stupid and that's not discriminatory, but I've already said my thing and I can't take any backsies. No take backsies. That's the's the rule, right? Like, no backsies.
01:08:27
Speaker
There's only one rule in Sarah court. That's no backsies.
01:08:36
Speaker
Okay. Serena, what arguments would you like to close with today? Yeah, I'm siding with Jared, no surprise.
01:08:46
Speaker
Power Plant has a long history of racism, has grandfathered those types of policies into today, whatever year this is um and continue to ah facilitate discrimination by adding these tests.
01:09:04
Speaker
And according to the Civil Rights Act, it should not be Those results should not be used to discriminate based on race, which to the court it seems like they are, um as how they use these results seem to flip-flop to ah but white employees in positions of advantage.
01:09:31
Speaker
And I close with that because I cannot talk. I love it.
01:09:39
Speaker
Okay. um Guys, it's going to be a clean sweep for this court today. i am also in a rare, in rare fashion, siding with Jarrett's argument.
01:09:52
Speaker
um So yes, everybody let that sink in. Wow. Yeah. Siding with Jarrett. I do think, mean,
01:10:03
Speaker
i mean I think that there's a lot of issues with the way that this company has ah enacted their employment policies throughout however long this time period is. 20 years, maybe, let's say. Yeah, that's fine. We haven't been able really nail that down. um ah so Exactly how long this has been.
01:10:24
Speaker
um I think there's a big issue in the way that they have grandfathered um white employees in into more favorable working conditions.
01:10:36
Speaker
um And I also think that there's probably issues with the actual efficacy of like the Wunderlich and the Bennett tests.
01:10:50
Speaker
Do they provide an accurate snapshot of an employee's capability to do a job? I don't know. ah I don't know. I haven't taken it. I'm also not a mechanic, so I would probably fail the Bennett test.
01:11:02
Speaker
So don't hire me. um And I also think that.
01:11:10
Speaker
I don't know. It just feels icky. The company feels icky. sure they do great things providing energy for their community, but at what cost? You know what i mean? So that's my case and I'm sticking to it.
01:11:25
Speaker
All right. Uh, so are you guys ready to hear the, uh, the real, what the real court decided?
Unanimous Decision Against Duke Power
01:11:34
Speaker
Oh my God.
01:11:37
Speaker
So yeah this case was argued ah December 14, 1970, and was decided on March 8th, 1971. Justice Brennan did not participate in the consideration or decision of the case. So this was actually decided by eight justices.
01:11:56
Speaker
And it was a unanimous opinion. The Court of Appeals was reversed. So um basically the court ruled Duke seems sus.
01:12:09
Speaker
Let's go. wow So in looking at this, so basically they said that the language of Title VII makes clear Congress's purpose in enacting it.
01:12:21
Speaker
Quote, it was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.
01:12:35
Speaker
Unquote. This means that even practices, procedures, or tests that look neutral or it or intended to be neutral are prohibited if they end up perpetuating prior discriminatory practices.
01:12:50
Speaker
So they talk about freezing the harmful status quo. Therefore, the act prohibits not only overt discrimination, but it also prohibits practices that end up being discriminatory in impact,
01:13:05
Speaker
and consequences. So in thinking about this, the court took this really deep dive into the history of the civil rights act. So they like looked at transcripts or whatever from the debate in Senate before it got enacted. They looked at a memo that was written by the co-managers of the bill, all the various amendments that they thought about. In in considering what Congress meant when they passed the law.
01:13:31
Speaker
So remember, the Supreme Court's job is to interpret the law written by Congress based on consideration of Congress's intent. So they looked at all of the these transcripts and evidence and, um you know, had a very clear picture of what Congress intended.
01:13:45
Speaker
Also, the Equal Employment Opportunity Commission, which enforces the law enacted by Congress, issued guidelines interpreting the act that state that only job-related tests um can be used. So only tests that measure the knowledge or the skills required by the job and fairly ah and affords the employer a chance to measure the applicant's ability to perform a particular job or class of jobs.
01:14:14
Speaker
Does this case like mark the beginning of modern day job descriptions as we know it? Sure does. Well, Jared. Yeah, but this was this is the case where they were like, if you're going to do a test, you need to have data showing that the test correlates with or is predictive of important job elements.
01:14:34
Speaker
And Congress also said that the employer has the burden of showing that a qualification requirement has a relationship to the job in question. So this whole general like, oh, let's just see how smart you are what you, you know, how smart, what what you can do. It needs to be specific.
01:14:51
Speaker
um So they were hung up on this, this fact that there were people in this job who didn't take the test or didn't meet the requirement and were never like required to do so.
01:15:03
Speaker
And then they were rising up in the ranks, same as employees who did do all that stuff. So they're like, y'all aren't measuring job performance then. What even is this? And they had a lot of analysis. And basically, they said that Congress isn't intending to guarantee a job to everybody, regardless of qualifications.
01:15:23
Speaker
And a person is not required to be hired just because he was formerly the subject of discrimination or due to a minority group status. But what is required is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.
01:15:49
Speaker
So if there's an employment practice that effectively ah excludes a class of people and can't be shown to be related to job performance, that practice has got to go. They also took a look at the ah at demographics.
01:16:04
Speaker
So they were like, yeah, this test looks neutral and that white employees perform better than black employees. But if you look at the census data, 34% of white men in that area completed high school compared with 12% of black men.
01:16:19
Speaker
of black men And during this time, so this case was decided in 1970. So segregation was active. So black students were deliberately being shunted into schools with inferior resources up until like within a generation of this case.
01:16:36
Speaker
So these kids shunted off into these schools, grow up, try to get a job at this, at this factory. And because of sort of this legacy of segregation,
01:16:47
Speaker
there um they're not performing as well. And they drew this parallel with literacy literacy tests for voter registration. And they were like, yeah, we we prohibited those because in practice, that just functions to black ah to block Black persons from exercising their right to vote.
01:17:04
Speaker
So ah they were like, we see what you're what you are doing here, duke and where we're not having this. And so we're not even going to talk about whether... you know, you need to do some testing for promotion or, you know, long range, you know, genuine business needs.
01:17:21
Speaker
And they said, quote, history is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees.
01:17:35
Speaker
Diplomas and tests are useful servants, but Congress has mandated the common sense proposition that they are not to become masters of reality. Wow. There go. So I think, ah serena kind of I of, well, i feel like she just immediately was like central issue. Yeah. And, and then was just like, done.
01:17:57
Speaker
saw Saw right through the facade. Come on, guys. It'd be a pretty boring podcast if we didn't argue about it for at least a little bit. ah Fun fact, um talking about the quarterbacks taking the Wunderlich test, that actually has been discontinued in 2022.
01:18:21
Speaker
So up until 2022, quarterbacks in the NFL were still taking the Wunderlich test. And I'm seeing here... They're saying that the process was outdated. Duh. Also, there was no statistically significant correlation between a player's Wunderlich score and his on-field performance.
01:18:39
Speaker
Well, yeah. has ever been documented. You know they could probably do it now after a concussion. Yeah, if they wanted to trend. Yeah. i And I remember hearing about players... They should give it but they should give it like once a year after each season just see how performance changes as the CTE kicks in. So I do recall, and i don't unfortunately I don't remember where I read this, so I can't you know cite my source, but um there was sort of this this practice among players to underperform at their preliminary Wunderlich. So then...
01:19:13
Speaker
They go out and then get a couple of taps to the head. And then, you know, as part of the testing of how they're doing, they get the the test and then they perform the same as they did before um and therefore can continue playing football. I don't remember where I read that, though. So thanks. I hate it.
01:19:30
Speaker
I still think that we should go back to our original ruling where we should say that ah the qualifications for all jobs should be an obstacle course race. Yeah. I do want to see a timed mile from everyone.
01:19:43
Speaker
um And. We're looking at how many, how many max pull-ups, how many pushups can you do in 80 seconds? How long can you hold your breath underwater?
01:19:54
Speaker
That's a good one. Yep. So yeah, this was a, there was some additional context around this. So. so After the Civil Rights Act, and this is the one of 1964, by the way, ah there was a lot of employers ah who did a whole bunch of changes in their employment actions and ah you know to meet the requirements of the act.
01:20:17
Speaker
And some were genuine in intent, but more often they weren't. And so around this time, a lot of companies started introducing tests and education requirements, which did end up being major major barriers to the advancement of minority groups that along with seniority, uh, uh, provisions.
01:20:36
Speaker
Um, so there was like discussion. I remember there was reading about a whole bunch of lawyers meeting at a conference and being like, so these tests are like bullshit, right? Yeah, yeah, they are. Yeah. Okay.
01:20:47
Speaker
Uh, because that they all kind of came together and found that that was, that what was going on. And this decision is, is is also notable because, Here's where the court said that discrimination isn't just some isolated act by one individual or company or party affecting another individual.
01:21:07
Speaker
But here they're conceptualizing it as a more systemic process that adversely affects groups by consequence, independent of motive or purpose or intention.
01:21:21
Speaker
And in a 20th anniversary survey, the original group of plaintiffs in this case, in the Grease case, all said that after this litigation, they got better jobs and benefited economically from the changes that that this led to.
01:21:38
Speaker
And then those those benefits become generational wealth, generational benefits. And that was the actual goal of the Civil Rights Act. Well, it was one of many goals.
01:21:51
Speaker
And then also, according to this article by Garrow, in 1988, the Supreme Court made some decisions that basically replaced the Griggs standard with a more lenient test for employers. But ah that doesn't really matter because the Civil Rights Act of 1991 came along and it reversed those rulings and then it codified the Griggs disparate impact standard into laws.
01:22:13
Speaker
So ah initially, SCOTUS was like, Griggs, and don't be discriminatory in impact. And then And 17 years later, they come up with another ruling being like, never mind, just kidding.
01:22:24
Speaker
But then three years after that, Congress is like, no, but no, no discriminatory impacts. Yeah. And this is the case where the term disparate impact comes from, to as far as I understand it. Like this is the disparate impact case.
01:22:41
Speaker
where most people, ah certainly folks that, ah you know, that I have worked with over my career in corporate America ah can, you know, if I say Griggs v. Duke Power, they have no idea what I'm talking about. I say disparate impact.
01:22:55
Speaker
They know what I'm talking about, or at least have heard the term. lot of corporate shills on this podcast.
01:23:05
Speaker
So, I was very excited to do this case because this is one of my my favorite cases. um Number one because just straight up, as you all alluded to, the number of cases where you read it and you're like, there's an obvious right answer. And then you read what the Supreme Court said and you're just like, well, son of a bitch. This is one where i was like, there's an obvious right answer. And then I read the results and I was like, oh, thank God. But but So this case for me is really important as somebody who has worked as a manager and supervisor for a long time, ah who hires people and and you know manages people.
01:23:48
Speaker
There is... so I've worked in technology. i know, um Serena, you have worked in technology and software development. There is this concept of what's called the whiteboard interview.
01:24:04
Speaker
And for people who don't work in software development, the way it kind of it basically works is they give you a coding problem to do and you have to code it writing on a whiteboard. And it can be...
01:24:15
Speaker
you know It's not real code, but like you have to solve the problem. It's basically a logic problem, and you have to solve it with code, and you do it while somebody watches you on the whiteboard.
01:24:27
Speaker
And ah my hot take is, I'm not a lawyer, but my hot take is that those kinds of interviews constitutes a test.
01:24:41
Speaker
And because they constitute a test, employers should be expected to validate that the whiteboard questions they ask and the answers that they are given actually relate to the job.
01:24:56
Speaker
And ah for anyone who listens to this podcast who is in software and has taken a whiteboard exam and gotten the job, I think most would agree that they are asked questions or are asked to solve a problem that they will never be asked to solve on the actual job itself.
01:25:12
Speaker
you know like sort you know write an algorithm to sort this data. Nobody writes that anymore because libraries do it for you. So i've always I've always been curious if there's if there's an employment law lawyer listening, please reach out to us and let us know or let me know because um I really want to know, are these whiteboard interviews available violations of this principle of if you're going to create a test, that test has to be an actual valid representation of the skills you actually would use on the job and the kinds of problems you'd have to solve on the job. So that's one thing. ah Second thing is um job descriptions.
01:26:06
Speaker
I think been my experience in a couple of different places that I've worked, not all of them, but some of them, that you know when a new job is like being opened, like they're opening a new role, whoever is going to be the manager of that role, they just say, like go write a job description.
01:26:23
Speaker
And ah I feel like an ah an employment lawyer hearing that would be very scared because um ah because job descriptions are the same ah yeah and have the same rules.
01:26:37
Speaker
And this is the case that created those rules that said, look, if you're going to put it in the job description, you need to be able to prove that if you require it, it's because it is actually required.
01:26:52
Speaker
You can't just say, like Sarah said earlier, like every every job description you see in corporate world is like minimum of a bachelor's degree. I bet that most of those roles don't actually require you to have a bachelor's degree in order to be successful in those roles. And I think the only reason we continue to like see that over and over and over and over again is because most people who are looking for jobs don't know about this case. They don't know about this case law. So I think employees have a lot more rights than they know about.
01:27:26
Speaker
And that's one of the reasons that I really wanted to do. I'm not a lawyer and this is not legal advice, but if you feel like you've been discriminated against, the EEOC still exists for now.
01:27:39
Speaker
And Uh, you know, and you can always go talk to a lawyer yourself. Uh, don't take my word for it. Please, dear God, don't take my word for it. But I did want us to do this case because there are some really interesting things that this case brings up.
01:27:56
Speaker
And, uh, And I feel like I talk about this case at companies that I've worked for. This case comes up a lot ah in conversation, not because the other managers know about it specifically, but they talk about the stuff that this case talks about. So they'll be like, oh, you know, we have to be careful. You know, we don't want to have a disparate impact. And I'll be like, yeah, that's great. That's this case.
01:28:19
Speaker
And you know these are the specifics about it. And you know this is how the EEOC works and how it doesn't work. And here's when the DOJ gets involved and and so on and so forth. So really interesting case. The last thing that I will note, Nikki touched on it a little bit, right? It was like they ruled.
01:28:38
Speaker
ah with Griggs on this one, 17 years later, they started to walk things back. This feels to me when I like legal decisions, this feels to me like, because the court is not static.
01:28:52
Speaker
And by the... mid by the end of the 60s in the beginning of the 70s we had had three terms of fdr democrat uh well i'll just say liberal uh had truman two terms of truman democrat and liberal then you had two terms of eisenhower but then you had kennedy and johnson also democrats and liberals And they were all appointing justices all through the middle of the 1900s.
01:29:27
Speaker
So the court was had moved pretty left. But after Johnson, you had ah one and a half terms of Nixon, one and a half terms or ah yeah with one a half terms of of Ford, had Carter, then you had two terms of Reagan, one term of Bush, ah Clinton, and then two more of the other Bush, right? So the court started to move right. And you see that, right? This was one of the this is the tail end of that very liberal court era, the same court...
01:30:01
Speaker
that ah brought us you know Brown v. Board of Education, for instance. So it's an important case and nobody's heard about it. And that was even what the court said at the time, because there was one justice who ah I think gave an interview like the day after, ah you know, and he was like, oh, this case is kind of a landmark. ah But when it first came out, the news was like, oh, whatever. And then it was not until time passed and legal scholars kind of sat down and started looking at it. And then they were like, oh, actually, this is a really big deal.
01:30:36
Speaker
The other thing that I do want to throw out there is that like we yeah we talk a lot. you know It's like, oh, this here's this company, and you know they did this thing, and they're bad, rawr, whatever.
01:30:51
Speaker
um And most of the time, that's fine, because ah those companies generally... you know It's in the past, and you know they may or may not be around anymore, or they've been acquired, or whatever. ah Duke Power is like one of the largest...
01:31:05
Speaker
ah power companies in the world? They're still very much around. Yeah, yeah. They're still very much around. um And I do just want to note that like we are talking about what happened at a particular site in the 40s, 50s, 60s.
01:31:27
Speaker
ah ah We're not saying Duke Power. when We say Duke Power RAR. ah We and don't mean like the current Duke Power. I know nothing about the current Duke Power. ah we're just talking about this historical thing that did happen at Duke power at the time.
01:31:45
Speaker
What you saying is Duke power, please don't sue us. I mean, power, please sponsor this podcast. Yeah. we yeah We'll take wonder like tests. if need be Well, is this a surprising results?
01:32:04
Speaker
Honestly, yeah, I'm surprised. Yeah, I'm surprised that the Supreme Court actually um like did the right thing.
01:32:14
Speaker
ah Well, recency bias. like We're tainted by what we know of the Supreme Court in our lifetimes in the last few decades, which is, you know, scary. Yeah, but after Buck v. Bell, you also know what the really far time ago Supreme Court was up to.
01:32:31
Speaker
It's really just a, I got it.
Historical Context and Reference Cases
01:32:35
Speaker
but just Yeah, just like just like right in the middle of the 20th century. Yeah, the sweet spot. yeah
01:32:44
Speaker
This one was unanimous too, I think, right? It was unanimous, but there was one abstention. Yeah, in the in the real case, yeah. So, yeah, all all eight were like, come on, Duke.
01:32:55
Speaker
Duke is Sorry, Duke was sus. Yeah, like, thank you. Thank you.
01:33:05
Speaker
Yeah, it was nice to ah bring you guys a case where it's like, you know, because I do remember Buck v. Bell where you were just like, no, obviously, clearly. And then we're like, just kidding. here's Oh, yeah.
01:33:16
Speaker
I had trauma from that. i was like, hold on. This seems cut and dry But like, and you know, ah are you going to pull the rug out from under us again? Are you setting us up for further disappointment?
01:33:30
Speaker
In the history of our nation. but two The two female justices involved in this case right now feel this is very obvious. Let's see what the nine white dudes decided in 1920. Yeah.
01:33:46
Speaker
Yeah. Yeah. Still never been explicitly, people talk about how it was implicitly overturned, which whatever. Um, and yeah, once again, I was finding reference to that case as, as recently as 2001.
01:33:59
Speaker
yeah. Wild wild. so oh yeah wild Well, there we have
Final Decision and Title VII Violation
01:34:07
Speaker
it. A strangely, well, maybe not strangely unanimous decision. The the strange part isn't the unanimity. it's It's that they all went for Jarrett.
01:34:16
Speaker
ah But there we have it. A strangely satisfying result. So you say. In any case, thank you, everybody. Thank you so much for joining us.
01:34:29
Speaker
And once again, um thank you to our Associate Justice Serena. Thank you for having me again. Associate Justice Mike. Can't prove I was here.
01:34:41
Speaker
And Chief Justice Sarah. You are so welcome. All right, that is it. Thank you, everybody. Have a wonderful night. Good night.
01:34:56
Speaker
So today, Sarah Court unanimously decided that the power company violated Title VII of the Civil Rights Act. That's it for this episode. But before we go, thanks again to my co-host and to our justices.
01:35:09
Speaker
The music in this episode was written by Studio Columna and Toby Smith and provided by Pixabay. Audio mixing and producing was done by Jarrett. Research was done by me.
01:35:21
Speaker
Thanks for listening. Please subscribe, rate, and comment so other people can find us.
Episode Conclusion and Promotion
01:35:27
Speaker
For complete episode information, including references, please check out our website at relitigated.com.
01:35:34
Speaker
You can also catch us on YouTube, Instagram, Facebook, Threads, and Blue Sky. Please help us spread the word. Until next time, I'm Nikki, and this has been Relitigated.
01:35:46
Speaker
Bye.