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Supreme Court Tightens Criteria in Employment-Bias Suits

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Washington--A sharply divided U.S. Supreme Court last week restricted the ability of minority school employees and other workers to use statistics to prove that employers' policies have the "effect" of discriminating against them.

In a 5-to-4 decision, the Court held that in order to support a finding of non-intentional job bias, minorities must demonstrate a cause-and-effect relationship between one or more employment practices and statistical imbalances in an employer's workforce. Simply demonstrating that whites are concentrated in high-paying jobs and minorities in low-paying positions, it said, will not suffice to prove a violation of Title VII of the Civil Rights Act of 1964.

In addition, the Court barred the use of internal workforce comparisons in making a prima facie case of job discrimination. The proper comparison, it said, is between the racial composition of the high-paying jobs at issue and the racial composition of all those who are qualified for the jobs in the employer's recruiting pool.

And in another setback for those seeking to prove discrimination, the Court held that the plaintiffs in such cases always bear the burden of proving that the employer's practices result in discrimination.

Writing for the majority, Associate Justice Byron H. White admitted that the Court's prior rulings on the burden of proof in this area of law "can be read as suggesting" that once a statistical imbalance is demonstrated, it becomes the employer's task to convince a court that the disparity is the result of practices that have a legitimate business justification.

But, he continued, those cases "should have been understood to mean'' that employers only have to present evidence of such a justification. The job of persuading a court "must remain with the plaintiff," he wrote, "for it is he who must prove that ... he was denied a desired employment opportunity" because of his race or color.

Chief Justice William H. Rehnquist and Associate Justices Sandra Day O'Connor, Antonin Scalia, and Anthony M. Kennedy joined in the majority opinion.

Griggs Decision Curtailed

The ruling in Wards Cove Packing Co. v. Atonio (Case No. 87-1387) se8verely scaled back rights won by minority workers in a 1971 case, Griggs v. Duke Power Co. In that case, the Court held for the first time that Title VII protected minorities against employment practices that may not have been intended to discriminate, but nevertheless have such effects.

Minority teachers and other school workers have used the Griggs ruling to challenge competency tests that minorities fail at a disproportionate rate, as well as other apparently race-neutral employment practices that result in racial disparities in the workplace.

The Wards Cove case involved charges that two salmon canneries in Alaska used a variety of hiring and promotion policies to concentrate Filipinos and Alaska Natives in low-paying, unskilled jobs and whites in better-paying, skilled positions.

The majority opinion drew harsh criticism from the four dissenting Justices--John Paul Stevens, Harry A. Blackmun, Thurgood Marshall, and William J. Brennan.

'Plantation Economy'

Justice Stevens wrote that the canneries--which maintain sepael15lrate housing and dining facilities for skilled and unskilled workers--have characteristics that "bear an unsettling resemblance to aspects of a plantation economy."

"Turning a blind eye to the meaning and purpose of Title VII, the majority's opinion perfunctorily rejects a longstanding rule of law and underestimates the probative value of evidence of a racially stratified workforce," he wrote. "I cannot join this latest sojourn into judicial activism."

"The changes the majority makes today, tipping the scales in favor of employers, are not faithful" to ordinary principles of fairness, Justice Stevens continued. "Why the Court undertakes these unwise changes in elementary and eminently fair rules is a mystery to me."

Justice Blackmun speculated about the majority's reasoning in a separate dissent.

"Sadly," he wrote, the majority opinion "comes as no surprise."

"One wonders," he continued, "whether the majority still believes that race discrimination--or, more accurately, race discrimination against nonwhites--is a problem in our society, or even remembers that it ever was."

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