For more than a half century the federal government has enacted countless laws and issued thousands of administrative decrees to promote racial equality. Central to this quest has been the doctrine of “disparate impact” (based on Title VII of the 1964 Civil Rights Act) that holds that any job requirement a business of at least 15 employees has that disproportionately harms blacks, might be punishable as racial discrimination. In the landmark case of Griggs (1971) for example, the Supreme Court held that requiring all applicants for a power company lineman job to have a high school degree was racially discriminatory since blacks were less likely to graduate high school. Crucially, the burden of proof was on the employer to demonstrate that the requirement producing the disparity was essential for the job, a difficult hurdle to overcome.
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