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Two decades after the once fiery debate about the meaning of "discrimination" in employment under Title VII of the Civil Rights Act of 1964, the issue has recently been rekindled. In simplest form, the question is whether the type of discrimination statutorily prohibited is only purposeful exclusions, or whether it includes unintended exclusions caused by tests or requirements that disproportionately affect a group defined by race, sex, or ethnicity. The Supreme Court's decision in Griggs v. Duke Power Co. resolved the question in one major area, thus causing the issue to lie dormant since 1971. Griggs held that liability under Title VII does not require a showing that an employer acted purposefully to exclude; instead, liability could be premised upon a showing that an employment screening device, such as a requirement of a high school education or a minimum score on an aptitude test, disproportionately excludes a group protected by the Act without the justification of business necessity.

The difference between "intentional" and "effect" discrimination still poses a question today in the area of subjective interviews. Objective hiring criteria, such as aptitude tests or education requirements, are distinguishable from formless subjective hiring processes. Is it sufficient to use a Griggs-based proof of adverse impact when challenging the disproportionate effect of subjective interviews, or must the claimant show purposeful exclusion in such a case? The courts of appeal are floundering on this issue.

A decision in favor of an intent requirement in such cases does not necessarily foreclose the use of statistical proof. Statistics have been the major focus of disparate impact cases following Griggs, as well as being relevant to proof of intentional discrimination.8 Statistical proof, however, should have a greater role than it currently does in cases alleging intentional discrimination. Statistics should play an important role in two ways. One is to probe whether a discriminatory pattern of hiring through subjective interviews is so unlikely to happen by chance alone that purposeful exclusion can be inferred. The other is to show the impact of a requirement such that the employer must have been aware of the exclusionary effect. The continued use of a selection process with a known exclusionary effect is a reckless disregard of rights which satisfies a statutory intent requirement. The burden then shifts to the defendant to show good faith belief in the validity of the requirement.

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46 Law & Contemp. Probs. 221 (1983).