Ellen Zweig


Since the Supreme Court held in Griggs that Title VII of the Civil Rights Act of 1964 prohibits employers from using employment selection systems which are not job-related or which act as "built in headwinds" for minorities, employment tests have been subject to more challenges in courtrooms. Since Griggs, courts have presumed employment tests challenged pursuant to Title VII to be invalid once the plaintiffs establish that the tests produce an adverse impact upon minorities. However, these courts have not suggested many alternative methods of testing and those that have been suggested are generally unworkable for employers who must comply with both Title VII and civil service laws requiring merit selection. While state civil service laws require employers to administer employment tests, federal courts ultimately invalidate testing devices under Title VII. Thus, Congress should amend Title VII to shift the burden of proof for civil service employers in disparate impact cases. By keeping the burden of proof with the plaintiff, the civil service employer would have a greater chance to comply with the state civil service laws, thereby providing a workable solution to this problem.