|Both the federal and state
judiciary provide extensive avenues for judicial review of both
anti-discrimination law and discriminatory practices in the United
States. In the years since the seminal case of Brown v. Board of
Education, 347 U.S. 483 (1954), U.S. courts have played a key role
in the review of governmental, national and local policies that may have
the effect of creating or perpetuating racial discrimination. Four areas
in which U.S. courts have been particularly active in reviewing and
shaping anti-discrimination law have been in employment, voting, housing
In the early years after the enactment of Title VII, many cases of race
discrimination were proven with direct evidence of a racial bias. Direct
evidence is generally understood as biased statements made or adopted by
an employer's decision-makers. However, as employers became more aware
of the prohibitions in the new law, race discrimination increasingly
took on more subtle forms. In 1973, the Supreme Court held in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), that discrimination may
also be proven by indirect, or circumstantial, evidence, and it
established the disparate treatment theory of proving discrimination.
Specifically, McDonnell Douglas established the elements of a prima
facie case of race discrimination; the defendant's burden to
articulate a legitimate, non-discriminatory reason for its actions; and
the plaintiff's burden to show that the defendant's articulated reason
is a mere pretext for a discriminatory motive. This paradigm continues
to function, with only minor modifications, as the most common theory
for proving race discrimination.
In 1971, the Supreme Court in Griggs v. Duke Power Co., 401
U.S. 424 (1971), examined the issue of whether race discrimination
prohibited by Title VII includes cases where the employer lacks a
discriminatory motive. The Griggs decision established the
adverse impact theory of proving discrimination, holding that a
plaintiff may prove race discrimination where an employer's policy or
practice is neutral on its face, yet is discriminatory in operation and
is not justified by business necessity. The Supreme Court later
established a more stringent test for establishing adverse impact
claims, but Congress restored and clarified the Griggs standard
in the Civil Rights Act of 1991.
Another commonly used method of proving race discrimination is the
harassment theory. Over the years, appellate courts have consistently
held that Title VII prohibits racial harassment, even where it entails
no tangible job detriment. See, e.g., Daniels v. Essex Group, 937
F.2d 1264 (7th Cir. 1991); Vance v. Southwestern Bell Tel. & Tel.
Co., 863 F.2d 1503 (11th Cir. 1989); Rogers v. EEOC, 454 F.2d
234 (5th Cir. 1971). Under this theory of discrimination, an employer
may violate Title VII where it subjects employees to severe or pervasive
unwelcome conduct because of their race. Under certain circumstances,
employers can even be vicariously liable for harassment by co-workers.
Voting. The Voting Rights Act, enacted in
1965, did not include a provision prohibiting the imposition of poll
taxes, but instead, it directed the Attorney General to challenge its
use. In Harper v. Virginia State Board of Elections, 383 U.S. 663
(1966), the Supreme Court held Virginia's poll tax to be
unconstitutional under the 14th Amendment. Between 1965 and 1969 the
Supreme Court also issued several key decisions upholding the
constitutionality of Section 5 and affirming the broad range of voting
practices for which prior federal approval ("preclearance")
was required. As the Supreme Court stated in its 1966 decision upholding
the constitutionality of the Act:
Congress had found that case-by-case litigation was inadequate to
combat wide-spread and persistent discrimination in voting, because
of the inordinate amount of time and energy required to overcome the
obstructionist tactics invariably encountered in these lawsuits.
After enduring nearly a century of systematic resistance to the
Fifteenth Amendment, Congress might well decide to shift the
advantage of time and inertia from the perpetrators of the evil to
South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966). See
also Allen v. State Board of Elections, 393 U.S. 544 (1969)
(recognizing that gerrymandered district boundaries or at-large
elections could be used to dilute minority voting strength).
Some years later, in 1973 the Supreme Court held certain legislative
multi-member districts unconstitutional under the 14th Amendment on the
ground that they systematically diluted the voting strength of minority
citizens in Bexar County, Texas. This decision in White v. Regester,
412 U.S. 755 (1973), strongly shaped litigation through the 1970's
against at-large systems and gerrymandered redistricting plans. However,
in Mobile v. Bolden, 446 U.S. 55 (1980), the Supreme Court held
that any constitutional claim of minority vote dilution must include
proof of a racially discriminatory purpose. This requirement was widely
seen as making such claims far more difficult to prove. As noted above,
Congress amended the Voting Rights Act in response to Mobile v.
Bolden to prohibit procedures or practices that have the effect of
discrimination against minority voters.
In Shaw v. Reno (1993), the Supreme Court for the first time
recognized an "analytically distinct" equal protection claim
for challenging a redistricting plan that allegedly constitutes a racial
classification. In Shaw, the Court held that five North Carolina
voters had stated a claim under the Equal Protection Clause in alleging
that the state's congressional redistricting plan contained districts
shaped so dramatically irregular that they could only be viewed as
having been drawn along racial lines. In a series of subsequent cases,
chief among them Miller v. Johnson in 1995 and Bush v. Vera
in 1996, the Court developed an elaborate framework for the adjudication
of these Shaw claims. Under that framework, the plaintiff's
initial burden is to show that the state used race as the
"predominant factor" in the design of the challenged district,
"subordinat[ing] traditional race-neutral districting principles .
. . to racial considerations." If the plaintiff makes this showing,
the plan is subject to strict scrutiny and will be held unconstitutional
unless the state demonstrates that its use of race was narrowly tailored
to achieve a compelling state interest.
The appropriate application of this new constitutional cause of
action - and its interaction with the Voting Rights Act -- has been the
subject of great debate and the law in this area is still evolve.
Housing. In the
years since the enactment of the Fair Housing Act, there have been many
important decisions by the federal courts that have shaped housing
discrimination law. See e.g., United States v.West Peachtree Tenth
Corp., 437 F.2d 221, 228 (5th Cir. 1971) (setting forth a model
remedial decree for fair housing cases); United States v. City of
Black Jack, 508 F.2d 1179 (8th Cir. 1974) (United States
successfully challenged racially discriminatory zoning practices that
had precluded development of racially integrated, low-income housing in
a St. Louis suburb); United States v. Hunter, 459 F.2d 205 (4th
Cir.), cert. denied, 409 U.S. 934 (1972) (holding that Section 804(c),
42 U.S.C. sec. 3604(c), prohibited the publication of an advertisement
for an apartment in a "White home" without violating the First
Two of the most important Supreme Court cases in this area are Trafficante
v. Metropolitan Life Insurance Co., 409 U.S. 205, 209, 211 (1972)
and Havens v. Coleman, 455 U.S. 365 (1982). In Trafficante,
the Supreme Court held that existing tenants in an all-White housing
complex have standing to sue under the Fair Housing Act to redress the
landlord's discrimination against Blacks who desired to become tenants.
In Havens, the Court held that fair housing "testers"
(matched pairs of Blacks and Whites who pose as homeseekers in order to
detect whether the housing provider is unlawfully discriminating) and
fair housing organizations have a right to sue in federal court under
certain circumstances. After these two important Supreme Court
decisions, standing under the Fair Housing Act is as broad as Congress
could have made it.
Education. The establishment of a judicial framework for
eliminating race discrimination in education began to evolve in the
1930s with challenges to the legalized denial of equal protection of the
laws. In San Diego, California, for example, children of Mexican descent
challenged segregation successfully in state court in Alvarez v. The
Board of Trustees of the Lemon Grove School District. (Superior
Court of the State of California, San Diego, Petition for Writ of
Mandate No. 66625, February 13, 1931). Local school officials in Lemon
Grove, California barred Mexican students from the local school, instead
directing them to a separate, inferior building. The children refused to
attend, and they challenged the school board. The state court ruled that
the school board had no legal right to segregate the children.
The assault in the federal courts began with an attack on the absence
of professional and graduate schools for Blacks. These efforts bore
initial fruit in 1938 when the Supreme Court ruled in Missouri ex rel.
Gaines v. Canada, 305 U.S. 337 (1938), that each state had a legal
responsibility to provide an equal education within its borders and
ordered the admission of a Black student to the School of Law at the
State University of Missouri. In 1950, the Court also ruled in Sweatt
v. Painter, 339 U.S. 629 (1950), that the state of Texas violated
the Fourteenth Amendment's Equal Protection Clause when it refused to
admit the petitioner to the University of Texas Law School.
Led by future Supreme Court Justice Thurgood Marshall, Blacks
directly challenged the separation of the races in education in the
seminal case of Brown v. Board of Education of Topeka (Brown I).
347 U.S. 483 (1954). The Court noted the importance of education as
"perhaps the most important function of state and local
governments," and concluded, "in the field of public education
the doctrine of 'separate but equal' has no place. Separate educational
facilities are inherently unequal."
Later, in concert with congressional action on the issue of equal
educational opportunity, the Supreme Court repeatedly required school
districts to take action that achieved integration, rather than merely
removed legal barriers. The Supreme Court supported these requirements
in Green v. County School Board of New Kent County, 391 U.S. 430
(1968). Alexander v. Holmes County Board of Education, 396 U.S.
19 (1969) and Swann v. Charlotte-Mecklenburg Board of Education,
402 US. 1, 30-31 (1971).
Then, in Keyes v. School District No. 1413 U.S. 189 (1973),
the Court made clear that the North and West were required to comply
with the Court's desegregation mandates. In Keyes, the Court required
the City of Denver to dismantle a school system that its school
districts had purposefully segregated.
To deal with discrimination on the basis of race and ethnicity as
complicated by language differences, the Supreme Court determined in Lau
v. Nichols, 414 U.S. 563 (1974), that the failure of a school system
to provide appropriate services to Chinese students who were no
proficient in English to allow meaningful participation in the
educational process. It therefore constituted discrimination under Title
VI of the Civil Rights Act.
The Supreme Court has also dealt some blows to desegregation and
equality in education. In San Antonio Independent School District v.
Rodriguez, 411 U.S. 1, 12-14, 55 (1973), the Court held that the
vastly unequal expenditures between different school districts did not
violate the Equal Protection Clause despite the concentration of
minority students in districts with drastically lower expenditures. In Milliken
v. Bradley, 418 U.S. 717, 745 (1974), the Court excluded many
suburban districts from desegregation plans by limiting desegregation
remedies to the school district in which the constitutional violation
occurred. As Whites rushed to the suburbs, this decision limited options
for desegregation in many cities that had large concentrations of
minority students and few Whites.
With respect to the second obligation of Article 2(1)(c), practices that
have discriminatory effects are prohibited by certain federal civil
rights statutes, even in the absence of any discriminatory intent
underlying those practices. Thus, such practices may be nullified under
the force of those statutes, consistent with Article 2(1)(c). This is
true of the Voting Rights Act of 1965, which Congress amended in 1982 to
make clear that practices that have a discriminatory effect on minority
voters violate Section 2 of that statute. The same is true under Title
VII of the 1964 Civil Rights Act, the federal regulations implementing
Title VI of the 1964 Civil Rights Act, and the Fair Housing Act, as
those statutes have been interpreted by the Supreme Court and lower
courts. Griggs v. Duke Power Co., 401 U.S. 424 (1971) (Title
VII); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582 (1983)
(Title VI implementing regulations); R. Schwemm, Housing
Discrimination Law and Litigation ¤ 10.04 (1990) (noting that
although the Supreme Court has yet to address the issue, lower courts
have uniformly held that disparate impact claims may be brought under
the Fair Housing Act, even in the absence of discriminatory intent).
While evidence of a disparate impact alone can establish a violation
of the Voting Rights Act, the Fair Housing Act and Titles VI and VII of
the 1964 Civil Rights Act, it is not sufficient to demonstrate a
Constitutional violation of equal protection (under the Fifth or
Fourteenth Amendments). In such cases, the plaintiff must establish that
the challenged act was done with discriminatory intent. See Washington
v. Davis, 426 U.S. 229 (1976) (Equal Protection Clause); General
Building Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375
(1982) (18 U.S.C. sec. 1981); R. Schwemm, Housing Discrimination Law
and Litigation ¤ 10.04 (1990). This is not to say that disparate
impact is irrelevant in equal protection or Sections 1981 or 1982
litigation, however. Determining whether discriminatory purpose exists
"demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available." Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977). As
the Supreme Court noted in Arlington Heights, disparate impact
"may provide an important starting point" for that inquiry. Id.
Indeed, where racial disparities arising out of a seemingly race-neutral
practice are especially stark, and there is no credible justification
for the imbalance, discriminatory intent may be inferred. Casteneda
v. Partida, 430 U.S. 482 (1977). In most cases, however, adverse
effect alone is not determinative, and courts will analyze statistical
disparities in conjunction with other evidence that may be probative of
discriminatory intent. Arlington Heights, 429 U.S. at 266-67. If
the totality of the evidence suggests that discriminatory intent
underpins the race-neutral practice, the burden shifts to the defendant
to justify that practice. See Mt. Healthy City School Bd. of
Education v. Doyle, 429 U.S. 274 (1977).
In its recently adopted General Recommendation XIV, the Committee
declared that "in seeking to determine whether an action has an
effect contrary to the Convention, it will look to see whether that
action has an unjustifiable disparate impact upon a group distinguished
by race, colour, descent, or ethnic origin." The Committee's use of
the term "unjustifiable disparate impact" indicates its view
that the Convention reaches only those race-neutral practices that both
create statistically significant racial disparities and are unnecessary,
i.e., unjustifiable. This reading of Article 2(1)(c) tracks the
standards for litigating disparate impact claims under Title VII, the
Title VI implementing regulations, and the Fair Housing Act. It is also
consistent with equal protection and Sections 1981 and 1982 standards,
to the extent that statistical proof of racial disparity -- particularly
when combined with other circumstantial evidence -- is probative of the
discriminatory intent necessary to make out a claim under those
provisions. In the view of the United States, Article 2(1)(c) does not
impose obligations contrary to existing U.S. law.