New York Employment Lawyer Blog

A Central Racial Discrimation Theory faces an interesting challenge.
In a recent op-ed piece in the Wall Street Journal, Mr. James Taranto questions the effect of the disparate impact test established by the Supreme Court in Griggs v. Duke Power Comp. (1971) and codified through the Civil Rights Act of 1991.

The Griggs case established that forcing potential employees to take an aptitude test was discriminatory in that it had a "disparate impact" on minorities. Chief Justice Warren stated that no matter the intent of the test it was unfair to increase the level of difficulty for minorities to gain employment.

Mr. Taranto argues or opines that corporations have outsmarted both the ruling and the law. Neither the Girggs case nor the Civil Rights Act applies to institutes of higher education in their admissions criteria. They are free to base admission on the infamous aptitude tests such as SAT and ACT. Then, since the schools use race as a factor in admissions, the corporations can use college degrees as a prerequisite in hiring. Mr. Taranto concludes that the college degree has become an aptitude test.
If Mr. Taranto's opinion is correct, what does that mean for employment law in general and the future, if not present, of disparate impact as a viable means of proving discrimination?

While there are still countless cases where the rights of minorities are protected by the disparate impact test, the test will be applied much less vigorously if it is seen as being so easily circumvented. Further, the current make-up of the Supreme Court seems prone to do away with race as a factor in admissions. Let me posit this. If the Court does away with racial preferences in school, and schools are permitted to test applicants, and corporations only hire applicants with college degrees, doesn't Griggs and the disparate impact test of the Civil Rights Act become a mere shadow of itself?

For Mr. Taranto's full article please visit: http://www.opinionjournal.com/taste/?id=110010091