A Letter From Stephen N. Shulman

Chairman of the EEOC, 1966-1967

During the time I was Chairman, the Commission struggled with a number of substantive and procedural problems, as might be expected of a new agency. One substantive issue stood out then, and remains today, as the outstanding challenge and accomplishment of the time. That was the definition of discrimination.

In 1966, conventional wisdom involved a debate as to what constituted discrimination and what constituted disadvantage. The Commission saw resolution of this debate and development of a meaningful definition of discrimination as its most important task. The issue, of course, was whether educational and experiential short fallings were to be viewed as disadvantages possessed by the individual seeking employment or as discriminatory obstacles imposed by the employer.

The Commission resolved this issue by recognizing that, in the absence of a clear justification, requirements of this sort constituted discrimination when they disproportionately impacted on a protected population. The matter was fully set to rest in a Commission decision that held that a requirement of a sixth-grade education in a southern plant was discriminatory against blacks. I cannot state the nature of the job involved, because it would reveal the employer. I can state that the job was simple labor with no skill demand. The sixth grade education requirement served no function other than to preserve the white character of the work force.

In time, of course, the Supreme Court defined this phenomenon as disparate impact discrimination in Griggs v. Duke Power Co. The Commission's earlier adoption of this approach in defining discrimination for purposes of its determination of reasonable cause was a step of great significance.