Many jobs require applicants to have a college degree, when the skills developed at college are not necessary to do the job, and the degree is not required to be in any particular field.

In Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Court held that:

The [Civil Rights] Act requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if … an employment practice that operates to exclude [a racial minority] cannot be shown to be related to job performance; it is prohibited, notwithstanding the employer's lack of discriminatory intent …

The Act does not preclude the use of testing or measuring procedures, but it does proscribe giving them controlling force unless they are demonstrably a reasonable measure of job performance.

Requiring a college degree seems to operate invidiously to discriminate on the basis of race because there is a significant racial disparity in U.S. educational attainment:

Chart showing percentage of adults age 25 and older who had completed a bachelor's or higher degree, by race/ethnicity: 2010 and 2016. 2016 figures: 31% Total, 35% White, 21% Black, 15% Hispanic, 54% Asian, 18% Pacific Islander, 15% American Indian / Alaska Native, 34% Two or more races

It has been argued that Griggs "may have enormously boosted the number of students in college and may have increased the differential in income between high school and college graduates," and "it is not clear that having a college degree requirement is legal under the Griggs standard": Griggs v. Duke Power: Implications for College Credentialing (2008).

Griggs was decided more than 50 years ago. Has anyone argued that college degree requirements are racially discriminatory and challenged them on the basis of Griggs? What, if anything, have the courts said about this argument?

2 Answers 2


Griggs has never been used to invalidate a requirement of a college degree, on that grounds that this has a disproportionate impact.

Moreover, this case is barely even still good law, at least according to one thoroughly reasoned U.S. District Court opinion (even though the opinion does cite an unusually large share of dissenting and plurality, but not majority, opinions, and so should be taken with some grain of salt):

The requirement of discriminatory intent is plain not merely from the fact that discrimination is an inherently intentional activity, but also from the text of § 2000e–6, which literally speaks of intent and “resistance.” The Attorney General's “reasonable cause” must underlie a belief “that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment” of Title VII rights, “and that the pattern or practice is of such a nature and is intended to deny the full exercise” of such rights. 42 U.S.C. § 2000e–6(a) (emphasis added).

The Court is well-aware of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) and its progeny, which hold that employers who apply objective, neutral criteria in hiring and promotion may be found guilty of “unintentional discrimination” if such neutral standards have a “disproportionate” impact upon any identified group. The Griggs rationale is inapplicable to the instant case for two reasons.

First, the literal text of § 2000e–6 described above, by which this case is brought, clearly mandates discriminatory intent as a required element of the cause of action. Whatever the influence of Griggs might be upon other Title VII actions, the Attorney General is held to this higher standard.

Second, the Supreme Court has overruled Griggs sub silentio. The concept of “unintentional discrimination” is logically impossible. Title VII was never intended to require employers to hire by racial, sexual, or other quota applicants who failed to qualify for a job because they could not meet some objective requirement. Indeed, Griggs conflicts directly with § 2000e–2(j), which prohibits imposition of hiring quotas; § 2000e–2(e), which protects bona fide occupational qualifications; § 2000e–2(h), which protects the use of “ability tests” not intended to discriminate unlawfully; and § 2000e–2(l ), which prohibits the alteration of test results or the application of different testing criteria on the basis of race, color, religion, sex or national origin. Subsection (1) was added as recently as 1991, and reflects Congress' frustration with that sort of judicial inversion of Title VII which led Justice Scalia to lament the law was written “[w]ith a clarity which, had it not proved so unavailing, one might well recommend as a model of statutory draftsmanship.” Johnson v. Transp. Agency, Santa Clara Cty., Cal., 480 U.S. 616, 657, 107 S.Ct. 1442, 1465, 94 L.Ed.2d 615 (1987) (Scalia, J., dissenting).

The Supreme Court has repeatedly refused to extend Griggs' rationale to Equal Protection analysis, holding that discriminatory intent, not disproportionate impact, is necessary to show a denial of Equal Protection. Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264–65, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979); Hernandez v. New York, 500 U.S. 352, 362, 111 S.Ct. 1859, 1867, 114 L.Ed.2d 395 (1991). The Supreme Court likewise rejected the application of Griggs to the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982, finding that the Civil Rights Act and the Equal Protection Clause “were all products of the same milieu and were directed against the same evils.” General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). Title VII of the Civil Rights Act of 1964 is obviously likewise born of the same environment, directed against further manifestations of the same evils. And in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the Supreme Court held that deprivation of due process under 42 U.S.C. § 1983 must also be intentional.

In the landmark case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 806, 93 S.Ct. 1817, 1826, 36 L.Ed.2d 668 (1973), the Supreme Court began its retreat from Griggs, holding that “in the absence of proof of pretext or discriminatory application” of a reason proffered to explain a challenged employment act or practice, Griggs is not applicable. As the Court later realized,

"Even a completely neutral practice will inevitably have some disproportionate impact on one group or another. Griggs does not imply, and this Court has never held, that discrimination must always be inferred from such consequences."

City of Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 710 n. 20, 98 S.Ct. 1370, 1376 n. 20, 55 L.Ed.2d 657 (1978). Where the Supreme Court has reaffirmed Griggs, it has lately done so only for other purposes, i.e. to extend the disparate impact analysis' requirement that an actual practice be demonstrated to cases targeting subjective application procedures under disparate treatment theory, Watson v. Fort Worth Bank & Trust, supra. Most importantly, however, the Supreme Court has explicitly eviscerated Griggs:

"Nor do we think it is appropriate to hold a defendant liable for unintentional discrimination on the basis of less evidence than is required to prove intentional discrimination. Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination."

Watson, 487 U.S. at 987, 108 S.Ct. at 2785. The Court proceeded to explain that in Griggs, the employer had a history of overt intentional discrimination. Thus, the ingredient necessary to transform a neutral practice into the “functional equivalent” of a Title VII violation is prior history of overt discrimination. See Regents of the Univ. of California v. Bakke, 438 U.S. 265, 309 n. 44, 98 S.Ct. 2733, 2758 n. 44, 57 L.Ed.2d 750 (1978) (plurality opinion). The intent to discriminate may have been demonstrated at some point in the past, but it is nevertheless a required element of all Title VII complaints, including those based on disparate impact theory. Accord Lorance, 490 U.S. at 904–05, 908–09, 109 S.Ct. at 2265, 2267 (discriminatory intent, not mere impact, required to challenge seniority system under Title VII). It can safely be stated that the rule of Griggs now stands as a distinction without a difference.

Although popularly derided as a “quota bill,” section 2000e–2(k), setting forth the burden of proof in disparate impact cases, did not negate the element of discriminatory intent. The subsection clearly announces that it is intended to set forth methods for establishing “an unlawful employment practice.” A primary element of “an unlawful employment practice” as described in 42 U.S.C. §§ 2000e–2(a)(1) & (2) is that the act be taken “because of such individual's race, color, religion, sex, or national origin.” (emphasis added). “The words of Title VII are not obscure ... By any normal understanding, the phrase ‘because of’ conveys the idea that the motive in question made a difference to the outcome.” Price Waterhouse v. Hopkins, 490 U.S. 228, 281, 109 S.Ct. 1775, 1807, 104 L.Ed.2d 268 (1989) (Kennedy, J., dissenting).


Apart from the question of whether discriminatory intent must be present in a disparate impact case, the Supreme Court has confirmed time and again that the alleged pattern or practice in a disparate impact case must be an intentional act deliberately engaged. To make a mere prima facie case, the United States must establish that sex discrimination was North Carolina's “standard operating procedure—the regular rather than the unusual practice.” Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855.

"The ‘pattern or practice’ language ... was not intended as a term of art, and the words reflect only their usual meaning ... ‘[A] pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature ... The point is that single, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or practice.’"

Id., at n. 16, quoting Sen. Humphrey.


Of course, plaintiffs must demonstrate not only the existence of an intentional, identifiable “pattern or practice” of resistance which causes the “impact,” but also the nature of the disparity. A disparity can be claimed only by reference to an identified norm from which the disparity is claimed. Without some root foundation for what would be the natural, non-discriminatory result, it is impossible to claim that any state of affairs reflects the “disparate” after-effects of an unlawful act.


Thus, in order to invoke the Court's jurisdiction over an allegation of discrimination based upon disparate impact, there must be some case or controversy surrounding the government's “reasonable belief” that the defendant has: (1) willfully and intentionally engaged in (2) an identifiable pattern or practice of resistance (3) intended to unlawfully discriminate, and (4) that this activity has actually caused an impact which is (5) visibly disparate from what must otherwise be the non-discriminatory norm. “[T]he ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times.” Wards Cove, 490 U.S. at 659, 109 S.Ct. at 2126, quoting with emphasis Watson, 487 U.S. at 997, 108 S.Ct. at 2790.

U.S. v. State of N.C., 914 F. Supp. 1257, 1265–67 (E.D.N.C. 1996).


This argument has been widely made on the internet, but I presume you mean more specifically "has this been part of a lawsuit which has been decided?". This article and this one aim in the direction that requiring a college degree is employment discrimination, and the same time they do not suggest that any court has addressed the question. It is conceivable but unlikely that any such lawsuit has been filed, since Griggs did not find that requiring a college degree is per se discriminatory, nor was there such a holding in Albemarle Paper Co. v. Moody, 422 U.S. 405.

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