Missouri Law Review Volume 37 Issue 4 Fall 1972 Article 8 Fall 1972 Recent Cases Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation Recent Cases, 37 MO. L. REV. (1972) Available at: https://scholarship.law.missouri.edu/mlr/vol37/iss4/8 This Note is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. et al.: Recent Cases Recent Cases CIVIL RIGHTS-TITLE VII OF CIVIL RIGHTS ACT OF 1964- DISMISSAL FROM EMPLOYMENT OF MINORITY-GROUP EMPLOYEE FOR EXCESSIVE WAGE GARNISHMENT Johnson v. Pike Corp. of America' Defendant corporation employed plaintiff, a black man, as a ware- houseman. Several times during his employment, plaintiff's wages were garnished to satisfy judgments. Defendant had a company rule stating, "Conduct your personal finances in such a way that garnishments will not be made on your wages," 2 and a policy of discharging employees whose wages were garnished in contravention of this rule. Pursuant to that policy, defendant dismissed plaintiff for violating the company rule. Plaintiff filed an action alleging that the practice causing his dismissal constituted discrimination against him because of race and, hence, violated Title VII of the Civil Rights Act of 1964. Section 703 of Title VII provides: a. It shall be unlawful employment practice for an employer- 1. to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employ- ment, because of such individual's race, color, religion, sex, or national origin.3 Plaintiff contended that the company rule, coupled with defendant's policy of discharging an employee whose wages had been garnished, violated the employment provisions of Title VII. He conceded that the defendant had never engaged in any racial discrimination in its hiring practices. Further, plaintiff conceded that defendant never intended its policy of dismissal for violation of the rule to be racially discriminatory. Rather, he asserted that discriminatory consequences resulted from his dismissal for continued garnishment of his wages and that these consequences violated Title VII. Thus, the issue was whether Title VII of the Civil Rights Act of 1964 prohibits an employer covered by the Act4 from discharging a black person solely because his wages repeatedly have been garnished to satisfy judgments. The District Court for Central California found for the plain- 1. 332 F. Supp. 490 (C.D. Cal. 1971). 2. Id. at 492. 3. Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (a) (1) (1970). 4. Id. § 2000e (b), as amended 86 Stat. 103 (1972), reads: The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year .... (705) Published by University of Missouri School of Law Scholarship Repository, 1972 1 Missouri Law Review, Vol. 37, Iss. 4 [1972], Art. 8 MISSOURI LAW REVIEW [Vol. 37 tiff,5 holding that Title VII applied to this case and citing the Supreme Court's recent opinion in Griggs v. Duke Power Co.6 as providing the test. In Griggs, black employees challenged their employer's requiring either a high school diploma or a passing score on specified intelligence tests as a condition to initial employment in or transfer between certain jobs. They contended that these practices violated Title VII of the Civil Rights Act of 1964. The Court held that the employment practice did operate to discriminate against Negroes and that it was proscribed by the 1964 Act. In so holding, the Court set out a two-pronged test for determining whether a practice violates Title VII. The first question is whether a particular practice discriminates on impermissible grounds as set forth by the Act. The second inquiry asks whether the practice is "demonstrably a reasonable measure of job performance," 7 although this standard is couched further in "business necessity"S language. However, the Court also looked at the policy behind the passage of the Act and said, Discriminatory preference for any one group, minority, or majority, is precisely and only what Congress has proscribed. What is re- quired by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermis- sible classification. 9 This language seems to apply the proscription of the Act to those practices of employment that prefer one group over another or those that discrimi- nate "invidiously" based on impermissible grounds. The district court in Johnson applied its interpretation of the Griggs two-pronged test 10 without reference to the above language. In so doing, the court created a situation in which the company, if it continues its policy of dismissal for wage garnishment, may violate Title VII in another manner. The court's reasoning why the company's practice was discrimina- tory against blacks, and thus violative of Title VII, is as follows: Dis- proportionately more blacks than whites are poor; poor people have a substantially higher rate of garnishment than the rest of the public; there- fore, dismissal for wage garnishment subjects a disproportionate number of blacks to dismissal." From this it follows that Title VII, while pro- hibiting dismissal of a black employee for being garnished repeatedly, allows an employer to dismiss a white employee whose wages are sub- 5. The parties submitted a stipulation to the court for its approval for udgment against defendant. The court upheld this stipulation after examining the issues as if the parties had argued the matter adversely. Johnson v. Pike Corp. of America, 332 F. Supp. 490, 492 (C.D. Cal. 1971). 6. 401 U.S. 424 (1971) (opinion by Chief Justice Burger). 7. Id. at 436. 8. Id. at 431. 9. Id. (emphasis added). 10. A threshold question is whether the Griggs test is applicable to the situa- tion in Johnson. The approach from Griggs seems particularly appropriate for application in Johnson, for in both cases the inquiries were to be applied to an employment practice racially neutral on its face and unintentionally discrimina- tory.11. 332 F. Supp. at 494-95. https://scholarship.law.missouri.edu/mlr/vol37/iss4/8 2 et al.: Recent Cases 1972.] RECENT CASES jected to repeated garnishments. However, for an employer to dismiss only white employees would create a preference for poor blacks over poor whites. Such a preference appears to fall within the proscription of Title VII as interpreted by the Supreme Court in Griggs.12 Furthermore, by failing to recognize the "preference" language as applying to the situation that the decision itself creates, the district court arguably created a "benign discrimination," which may violate due process by discriminating against the majority and showing a preference to a minority.13 Aside from this unresolved question regarding the impact of the "preference" language in Griggs, the district court applied the Griggs two- pronged test in a questionable manner. The first inquiry is whether the 14 practice discriminates against any person or group on the basis of race. In Griggs, the Court made it clear that "[tihe Act proscribes not only overt discrimination but also practices that are fair in form, but discrimina- tory in operation."' 5 Therefore, the actual consequences of an employment practice constitute the touchstone, making it unnecessary to prove either motive or intent to discriminate16 if it is found that the consequence of a particular practice is to discriminate against a person "because of [his] race, color, religion, sex, or national origin.... .,17 Griggs contains some troublesome language regarding this inquiry, however. Griggs dealt with an employment practice that had existed prior to the 1964 Act and that had been instituted with conscious discriminatory purpose to prevent Negro workers from advancing. In light of this, the Court interpreted the congressional intent in passing Title VII to be to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices.'s On the other hand, the district court in Johnson was dealing with a situa- tion where the alleged discrimination was not a carryover from prior 12. See text accompanying note 9 supra. 13. See Kaplan, Equal Justice in an Unequal World: Equality for the Negro- The Problem of Special Treatment, 61 Nw. U.L. Rxv. 363, 381-83 (1966). The court in Johnson ignores the possibility of "benign discrimination," for it says, "The fact that [dismissal for garnishment] may also discriminate against the poor white is irrelevant to our consideration under Title VII." 332 F. Supp. at 495. That dismissal for wage garnishment discriminates against poor whites as well as poor blacks is quite relevant to the "benign discrimination" question. By its decision in Johnson, the court in effect allows the employer to continue dis- criminating against whites on the basis of economic status while forbidding him to do so with regard to blacks. 14. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). 15. Id. 16. This follows from the Griggs opinion, which reversed a lower court hold- ing that the practice challenged in Griggs was not proscribed by Title VII because of a lack of discriminatory intent.