• Last updated on November 11, 2022

The Supreme Court ruled that plaintiffs must show a discriminatory intent, not merely a disparate impact, to prevail under the equal protection requirements of the Fifth and Fourteenth Amendments.

In 1970 African American plaintiffs challenged the constitutionality of a hiring and promotion policy of the District of Columbia police department. They objected to the use of Test 21, which attempted to measure verbal skills and reading ability, because African American applicants failed the test at a rate four times that of white applicants. They were encouraged by Griggs v. Duke Power Co.[case]Griggs v. Duke Power Co.[Griggs v. Duke Power Co.] (1971), when the Supreme Court interpreted Title VII so that employers had to demonstrate the business necessity of any employment policies having a disparate impact on racial minorities. The plaintiffs in the Washington case had to rely on the Fifth Amendment because at the time they filed suit Title VII did not apply to governmental agencies.Discrimination, employment;Washington v. Davis[Washington v. Davis]

By a 7-2 vote, the Court upheld the use of the examination. Justice Byron R. White’sWhite, Byron R.;Washington v. Davis[Washington v. Davis] opinion for the majority emphasized that an employment practice is not unconstitutional “solely because it has a racially disproportionate impact.” Citing numerous precedents, White concluded that the Court had employed the “purposeful discrimination” test when examining claims of a constitutional violation. Addressing the questions of when and how one might infer discriminatory intent, White wrote that disproportionate impact was “not irrelevant,” but that it had to be considered within the context of the totality of relevant facts. The Constitution did not require scientific proof that requirements were related to job performance, but employers had to show that there was a reasonable relationship between the two. White found that Test 21 was neutral on its face and rationally related to the legitimate governmental purpose of improving the communication skills of police officers.

The Washington decision did not disturb the Court’s earlier rulings in regard to Title VII of the Civil Rights Act of 1964, prohibiting many employment requirements that had a disproportionate effect on minorities. It also actually had little influence in regard to the racial effects of employment requirements because Title VII was expanded to include governmental employees in 1972. The decision was important, however, for nonemployment cases such as McCleskey v. Kemp[case]McCleskey v. Kemp[MacCleskey v. Kemp] (1987), in which the Court disregarded statistical studies when examining the constitutionality of capital punishment.

Civil Rights Acts

Due process, substantive

Employment discrimination

Griggs v. Duke Power Co.

McCleskey v. Kemp

Race and discrimination

Categories: History Content