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).
C
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.
D
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.
E
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.
