The Unintended Consequences of Griggs v. Duke Power Co.
Ilana Redstone
Abstract
When the Supreme Court decided Griggs v. Duke Power Co. in 1971, the Justices gave crucial weight to the Civil Rights Act of 1964. Up to that point, anti-discrimination cases relied heavily on the ability to demonstrate the intent to treat someone differently because of their race. And demonstrating racist intent generally required being able to rule out other plausible explanations for differential treatment. But because plausible non-racist explanations exist in most situations, this approach meant that some unknown number of discrimination cases were lost—or never brought forward—when racial discrimination did, in fact, occur. By making disparate outcomes a violation of Title VII of the new act, the Court legally equated discrimination without racist intent and discrimination with racist intent, making winning such cases significantly easier. However, this victory for civil rights legislation also cleared the way for a fundamental moral shift—one that created serious problems for democratic discourse. Because racism is a moral wrong and because discrimination is understood to be an expression of racism, once disparate outcomes were considered indicative of discrimination, such outcomes were themselves considered indicative of racism.
The equation of racism with racist intent and racism without racist intent (determined by impact) contributed to a new moral framework that treated political positions that didn’t align with these assumptions as evidence of moral failure. The self-evident moral wrongness of racism helped fuel the voluntary adoption of preventive policies and practices based on this new definition, creating a twofold problem. One was that dissenters were largely politically conservatives, which meant that the new definition of racism now covered conservative political opinions. The other was that this framework was absorbed into American institutional life, ultimately shaping everything from DEI battles, to corporate hiring, to battles over campus speech and political discourse. While this shift emerged from the laudable goal of addressing racial inequality, the sweeping changes it paved the way for were never subject to democratic deliberation. This meant the associated costs and benefits were never openly evaluated. Opening that conversation now means starting with the following question: What price are we, as a society, willing to pay for advancing the Civil Rights Movement?
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Author information:
Ilana Redstone
Associate Professor, Department of Sociology, University of Illinois Urbana-Champaign
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Recommended citation:
Ilana Redstone, The Unintended Consequences of Griggs v. Duke Power Co., 1 Indep. L.J. 49 (2025)