When Congress passed Title VII of the Civil Rights Act of 1964, it did not extend the coverage of the Act to public employers. Consequently, the Griggs v. Duke Power Co. decision in 1971 created the anomalous situation that private employers were held to a tougher standard of scrutiny with respect to racial considerations in their hiring procedures under Title VII than were public employers under the Constitution. This curious development in the relationship between public employment and Title VII caused many courts to alter their standards for equal protection violations in the early 1970's. In the realm of public employment, these courts began to permit a showing of the disparate impact of an employment test on a minority group to shift the burden to the state of showing that the test was job related. Since this analysis had been used in the context of the constitutional standard for equal protection violations, these decisions abandoned the traditional de jure test in favor of a de facto test which required only a showing of impact without inquiry into the state's intent.
T. K. Fogg,
Constitutional Law-Civil Rights-Standard for Relief in Racial Discrimination Cases Requires a Showing of Discriminatory Intent,
U. Rich. L. Rev.
Available at: http://scholarship.richmond.edu/lawreview/vol11/iss1/12