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In the 1971 case, Griggs v. Duke Power (401 U.S. 424), the United States Supreme Court held that if an employment test (or other mechanism for screening job applicants) had a disparate impact on a group protected by Title VII of The Civil Rights Act of 1964, discrimination in violation of the Act would be presumed unless the employer could prove the "job-relatedness" of the test. (For details on the Griggs case, see England 1992 chap. 5.) The Griggs case represents a high-water mark in the Supreme Court's jurisprudence of discrimination, for it establishes proof rules that can catch both intentional and inadvertent discriminators in their net. Under the Fourteenth Amendment, discrimination ordinarily requires evidence of unequal treatment and not just a disparate impact; when the Griggs case was decided Title VII could have been interpreted in the same way. What the Griggs test does not recognize is that the very concept of discrimination is contestable. In assuming that job -relatedness negates the discriminatory implications of proven disparate impacts , the Court ignores the possibility that accepted criteria of job performance (e.g., punctuality) in themselves may privilege the performance standards of one social group vis-à-vis another and may endure precisely because they embody a dominant group's understanding of Proper behavior. It is not clear that in Griggs the Justices perceived this issue; but if they did, one can sympathize with their reluctance to address it. For when one enters this realm, which we call cultural discrimination, the concept of discrimination becomes problematic, as discrimination can be situated as much in perspectives on behavior and outcomes as in behavior and outcomes themselves. For this reason the concept "discrimination" has long been contested political territory, even if in most debates about discrimination, the courts and other participants studiously ignore this fact.


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