The Fight for Economic Justice: Griggs v. Duke Power Co.
and the Cancellation of Baltimore’s Red Line
In this final installment of our “Throwback Thursday” (#tbt) “Civil Rights, Equality, and Justice: Then & Now” series for Black History Month 2016, we address economic justice. First, we look back at LDF’s litigation of Griggs v. Duke Power (1971), one of the most important employment discrimination cases in America. Then, we explore LDF’s work in filing a federal civil rights complaint against Maryland, alleging that the state discriminated against African-American residents in Baltimore when it cancelled the Red Line rail project.
Then: Griggs v. Duke Power Co. (1971)
Though the passage of Title VII of the Civil Rights Act of 1964 prohibited employment discrimination based on race, in the years immediately following the Act, the employment landscape for African-American workers changed little. The business establishment in America still prejudicially favored white Americans. They received the most preferable shifts, were least susceptible to lay-offs, and were more often provided with overtime opportunities, promotions, transfers to more prestigious departments, and salary increases compared to African Americans.
To fight this overt discrimination, LDF marshalled its forces to combat industry giants, such as P. Lorillard and U.S. Steel, and national unions, such as the AFL-CIO. These groups fought vigorously and vehemently to deny equal employment opportunities to African Americans, even going so far as to attempt to block, on technical grounds, class action suits — LDF’s chosen method for litigating employment discrimination.
In Griggs, LDF struck a serious blow to discriminatory employment practices and established the legitimacy of “disparate impact” claims — a seminal achievement that transformed America’s workplaces and provided a powerful legal framework to combat employment discrimination. Under disparate impact analysis, Title VII’s provisions proscribed not only intentional discrimination, but also practices that were “fair in form,” yet discriminatory in operation. Such practices were often artificial, arbitrary, and unnecessary, and specifically designed to target African Africans.
Recognizing that the disparate impact standard could have a far-reaching and transformative impact, Jack Greenberg—then LDF’s President and Director-Counsel—and Julius Chambers, a lead litigator at LDF who later became Greenberg’s successor, brought suit against Duke Power Company’s Dan River Steam Station, a power-generating facility located in Draper, North Carolina. The two LDF attorneys represented 13 African Americans employed at the station. Each had been relegated exclusively to the lowest-paying of the station’s five departments.
Prior to the enactment of Title VII, Duke openly discriminated against African-American employees. After Title VII went into effect, the company instituted a new transfer, promotion and hiring policy, making completion of high school — or achieving scores on two separate IQ tests equal to the scores of median high school graduates — a prerequisite to working in any department other than Labor.
After hearing Greenberg’s passionate oral arguments, the Court unanimously held that Duke’s standardized testing and high school diploma requirements barred African-American employees in disproportionate numbers from being hired by, or advancing to higher-paying departments, within the company. Moreover, neither the high school graduation requirement nor the two IQ tests gauged an employee’s ability to learn or perform a particular job or class of jobs at Duke. The subtle, illegal purpose of these requirements was to safeguard the company’s long-standing practice of giving its white employees job preferences over African Americans.
Beyond establishing the validity of disparate impact jurisprudence, Griggs laid the groundwork for Title VII law, including: the use of statistical evidence to demonstrate discrimination; how burdens of proof could be ordered and allocated in Title VII suits; the need to demonstrate that tests developed to assess job aptitude had to do just that — measure an applicant’s capacity to perform essential job functions; and that the Equal Employment Opportunity Commission is entitled to deep deference in interpreting Title VII provisions. The victory of Griggs was so profound and deeply felt that it enabled LDF to argue the first sex discrimination suit successfully in Phillips v. Martin Marietta Corp., further cementing Griggs’ constitutional and civil rights significance.
Now: Cancellation of the Red Line in Baltimore (2015)
While equal employment opportunity is manifestly important for economic justice, the ability to travel to and from work is just as crucial. Inadequate transportation access is one of myriad impediments to job access for African Americans and one that is often caused by discriminatory government action. This is the case in the cancellation of Baltimore’s Red Line light rail system.
Historically, eminent domain was routinely invoked to displace African Americans from residential areas in cites and surrounding suburbia to make room for highways and other roadworks. In the rare instances that relocation assistance was provided, African Americans were often moved to overcrowded public housing in economically depressed areas, with fewer job prospects, less connectivity to vital commercial hubs, and where epidemic poverty created a perception of irremediable urban blight. Officials and policy makers often cast a blind eye to the disparate impact that these decisions had on the lives of African Americans.
In particular, these decisions had a direct impact on the extent and quality of public transportation. Many cities, because of public transportation shortages and infrastructural weaknesses, failed to create reliable public transportation systems that penetrated all areas. Black communities were thus denied meaningful connection to areas where jobs were most plentiful.
Baltimore, riven by a history of racial disparities, is one glaring and troubling example. In June 2015, Maryland’s Governor Larry Hogan announced the cancellation of the Red Line, a planned east-west mass transit light rail. Instead, all state funding earmarked for the Red Line was redirected to a newly created Highways, Bridges and Roads Initiative, which focused largely on rural and suburban areas outside Baltimore. The Red Line would have cut Baltimoreans’ commuting time, increased their accessibility to job centers, and dramatically decongested traffic along highways and roads inside of and leading into the city.
Expert analysis, research and community interviews, as well as the state’s own analysis pointed to the disparate impact of Red Line’s cancellation on African-American residents of Baltimore and the State of Maryland. In 2010, approximately 25 percent of Baltimore’s 620,961 African-American residents — 63.7 percent of the city’s total population — relied on public transportation to travel to work, compared to only eight percent of whites. Since the 1970s, Baltimore has had a history of racially-charged resistance to public transportation projects that would have benefited African Americans. Typically, a vocal population of affluent white voters would protest and government would cave.
The state and federal governments had already spent almost $290 million on the Red Line project since planning began in 2001. Furthermore, in cancelling the project, Maryland forfeited $900 million in federal funds. Perhaps most galling was Governor Hogan’s move to continue with plans to construct the Purple Line, which would service, among other counties, Montgomery County, which has Maryland’s highest per capita income.
This transportation disparity in Baltimore was reflective of other racial disparities in the city in employment, wealth and education. Unemployment in Greater Rosemont — a primarily African-American neighborhood that would have been served by the Red Line — is nearly 25 percent, compared to the city’s overall unemployment rate of 14.2 percent. Whites in Baltimore earn nearly twice as much as African Americans, and a condition some have called “educational apartheid” continues to exist in Baltimore’s hyper-segregated public schools.
LDF, along with the Civil Rights Education and Enforcement Center, Covington & Burling LLP, and the ACLU of Maryland, filed a complaint with the United States Department of Transportation on behalf of the Baltimore Regional Initiative Developing Genuine Equality, Inc. and African-American residents of the State of Maryland. The complaint states that the cancellation of the Red Line violates Title VI of the Civil Rights Act of 1964, which prohibits state agencies that engage in discrimination from receiving federal funds.
“The disproportionate harm to African Americans in Maryland is clear,” said Ajmel Quereshi, LDF Assistant Counsel. “Without a doubt, the decision to defund the Red Line fits a long pattern of discriminatory decisions impacting African Americans in Baltimore and illustrates the well-documented discriminatory funding diversions for transportation projects in low-income neighborhoods across the nation. We strongly urge the United States Department of Transportation and the Federal Highway Administration to redress this wrong and to proactively and vigilantly pursue any entity that chooses to disregard Title VI’s anti-discrimination mandate.”
To read the full complaint, click here.
A report on the implications of the Red Line’s cancellation can be found here.
This completes our “Throwback Thursday” (#tbt) “Civil Rights, Equality, and Justice: Then & Now” series for Black History Month 2016. In our first installment, we took a look at LDF’s fight for voter equality; our second installment focused on unjust policing and police reform; and our third installment examined educational desegregation and inclusion.