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Two civil rights cases, of particular significance as we commemorate the fortieth anniversary of the 1964 Civil Rights Act, are on the 2004-2005 docket of the United States Supreme Court. One raises the question of whether a person claiming to be a victim of retaliation for protesting discriminatory acts by a recipient of federal financial assistance has a private right of action to redress his injury. In the second case, the Court is asked to resolve a split among the federal courts of appeals over the issue of whether disparate impact claims may be brought for alleged employment discrimination. If this picture strikes you as somewhat odd, there is a reason. Forty years ago Congress included in the 1964 Act a provision known as Title VI, which prohibits "discrimination under any program or activity receiving Federal financial assistance" against anyone "on [the] ground of race, color, or national origin. Moreover, Title VII of the Act, which bars employment discrimination on the basis of race, color, religion, sex, or national origin has been construed, since the landmark 1971 Supreme Court decision in Griggs v. Duke Power Company, to permit disparate impact suits. In such litigation, the plaintiff may recover for employment discrimination if the defendant utilizes a practice that disproportionately screens out members of a group protected by the Act and if the practice cannot be shown to be job related or consistent with business necessity, even though there is no evidence of an intent to discriminate. Congress codified this judicially created doctrine in the Civil Rights Act of 1991.
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