Washington v. Davis

Washington v. Davis, 426 U.S. 229 (1976), was a United States Supreme Court case that established that laws that have a racially discriminatory effect but were not adopted to advance a racially discriminatory purpose are valid under the U.S. Constitution.

Facts
Two black applicants for positions in the Washington, D.C. police department were turned down. Suing, they claimed that the department used racially discriminatory hiring procedures, including its use of a test of verbal skills (Test 21), which was failed disproportionately by African Americans. The plaintiffs sued the department, alleging that the test constituted impermissible employment discrimination under both Title VII of the Civil Rights Act of 1964 and the U.S. Constitution.

Since the respondents were filing the action in Washington, D.C., a federal territory, not a state, the constitutional provision the plaintiffs sued under was the Due Process Clause of the Fifth Amendment instead of the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause directly applies only to the states, but the Supreme Court ruled in Bolling v. Sharpe that the Due Process Clause of the Fifth Amendment, which applies to the federal government, contains an equal protection component.

Judgment
The Supreme Court held that under the Constitution's Equal Protection Clause, "a law or other official act, without regard to whether it reflects a racially discriminatory purpose, [is not] unconstitutional solely because it has a racially disproportionate impact." A plaintiff must prove discriminatory motive on the part of the state actor to receive redress under the Constitution, not just discriminatory impact. It held a "disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution."

The Court also examined whether Test 21 had a discriminatory effect. After applying the disparate impact analysis, it held that Test 21 did not have a discriminatory effect on blacks. The Court held that the Court of Appeals had erroneously assumed that the stricter, effects-based "disparate impact" test, under Title VII of the Civil Rights Act of 1964, existed under the Constitution's Equal Protection Clause as well. The Court pointed out that the Washington, D.C., police department had gone to significant lengths to recruit black officers. In the years since the case was brought before the trial court, the ratio of blacks on the police force to blacks in the community had nearly evened out.

Justice White said the following:

"As the Court of Appeals understood Title VII, employees or applicants proceeding under it need not concern themselves with the employer's possibly discriminatory purpose but instead may focus solely on the racially differential impact of the challenged hiring or promotion practices. This is not the constitutional rule. We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today.

[...]

Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional rights of respondents as well as other black applicants. As we have said, the test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue. Even agreeing with the District Court that the differential racial effect of Test 21 called for further inquiry, we think the District Court correctly held that the affirmative efforts of the Metropolitan Police Department to recruit black officers, the changing racial composition of the recruit classes and of the force in general, and the relationship of the test to the training program negated any inference that the Department discriminated on the basis of race or that 'a police officer qualifies on the color of his skin rather than ability."

Justices Brennan and Marshall dissented. They would have held that the constitutional questions would not be reached and that the question should have first been decided on statutory grounds in the employees' favor.

Significance
The purpose-based standard made it much more difficult for plaintiffs to prevail in discrimination suits arising under the Constitution. Unlike the Constitution, Title VII of the Civil Rights Act of 1964 was interpreted in Griggs v Duke Power Co., 401 US 424 (1971) to prohibit employment practices that have a racially disparate impact irrespective of whether they were adopted with a discriminatory purpose.

In the years following Washington, the Court held that laws must be motivated by purposeful discrimination, not just have a discriminatory effect, to be unconstitutional. In Personnel Administrator of Massachusetts v Feeney 442 US 256 (1979) held legislation obnoxious to the Equal Protection Clause is passed "because of'', not merely in spite of, its adverse effects upon an identifiable group."

In Mobile v. Bolden, the Court cited Washington in holding that the Fifteenth Amendment prohibited racially discriminatory voting laws only if they were adopted with a racially discriminatory purpose. That principle was affirmed again in McCleskey v. Kemp, 481 U.S. 279 (1987), which held that criminal statutes are invalid under the Equal Protection Clause only if they were adopted with a discriminatory purpose.

In 1991, Congress amended Title VII of the Civil Rights Act of 1964 and codified the "disparate impact" test, established in Griggs v. Duke Power Co. and its progeny, which allows employees to sue their employers (including governmental entities) for racial discrimination irrespective of discriminatory purpose. Justice Scalia argued in his concurrence in Ricci v. DeStefano that the disparate impact provisions of Title VII should be unconstitutional under the Equal Protection Clause.