But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. The Court obviously hasn't decided exactly why it is adopting disparate impact theory. So it employs all of the available arguments. A Conceptual Framework Locate arguments in three different versions of equal treatment Negative equality eliminate intentionally discriminatory decision making. Expanded Negative equality eliminate intentional discrimination but aware that proof of bad motive is not always available.
Positive equality require unbiased meritocratic standards.
Employer in Griggs made no showing of job-relatedness at all. Duke Power Co. Court offers both weak and strong versions of the requirement. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.