EEO: Disparate Impact
Even where an employer is not motivated by discriminatory intent, Title VII prohibits an the employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class.
Supreme Court Cases
The Supreme Court first described the disparate impact theory in 1971, in Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971): Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."
In 1989, the Supreme Court reduced the defendant's burden of proving business necessity to a burden of producing evidence of business justification. Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 657 (1989). The Civil Rights Act of 1991 overturned that portion of the Wards Cove decision.
Examples of practices that may be subject to a disparate impact challenge include written tests, height and weight requirements, educational requirements, and subjective procedures, such as interviews.
Allocation of proof
- Prima facie case The plaintiff must prove, generally through statistical comparisons, that the challenged practice or selection device has a substantial adverse impact on a protected group. See 42 U.S.C. § 2000e-2(k)(1)(A)(i). The defendant can criticize the statistical analysis or offer different statistics.
- Business necessity If the plaintiff establishes disparate impact, the employer must prove that the challenged practice is "job-related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i).
- Alternative practice with lesser impact Even if the employer proves business necessity, the plaintiff may still prevail by showing that the employer has refused to adopt an alternative employment practice which would satisfy the employer's legitimate interests without having a disparate impact on a protected class. 42 U.S.C. § 2000e-2(k)(1)(A)(ii).
- Scored tests There are several methods of measuring adverse impact. One method is the EEOC's Uniform Guidelines on Employee Selection Criteria, which finds an adverse impact if members of a protected class are selected at a rates less than four fifths (80 percent) of that of another group. For example, if 50 percent of white applicants receive a passing score on a test, but only 30 percent of African-Americans pass, the relevant ratio would be 30/50, or 60 percent, which would violate the 80 percent rule. 29 C.F.R. § 1607.4 (D) and 1607.16 (R). The 80 percent rule is more of a rule of thumb for administrative convenience, and has been criticized by courts. 1 LINDEMANN AND GROSSMAN, EMPLOYMENT DISCRIMINATION LAW, at 92-94. The courts more often find an adverse impact if the difference between the number of members of the protected class selected and the number that would be anticipated in a random selection system is more than two or three standard deviations. 1 LINDEMANN AND GROSSMAN, at 90-91. The defendant may then rebut the prima facie case by demonstrating that the scored test is job related and consistent with business necessity by showing that the test is "validated", although a formal validation study is not necessarily required. 29 CFR § 1607.5(B); see Watson v. Fort Worth Bank & Trust Co., 487 U.S. 977, 998 (1988); Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975).
- Nonscored objective criteria The Uniform Guidelines are applicable to other measures of employee qualifications, such as educational, experience, and licensing requirements. In cases involving clerical or some blue collar work, the courts have generally found unlawful educational requirements that have a disparate impact. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971) (invalidating high school diploma requirement for certain blue collar positions, where 34 percent of white males in state had completed high school while only 12 percent of African American males had done so, and defendant did not demonstrate link between high school diploma and job performance.) The higher the professional position or the greater the consequence of hiring unskilled applicants, the lower the burden upon the employer of proving job relatedness. See, e.g., Briggs v. Anderson, 796 F.2d 1009, 1023 (8th Cir. 1986) (college degree in psychology is a valid requirement for counselor position); Aguilera v. Cook County Police & Corrections Merit Board, 760 F.2d 844, 848 (7th Cir.), cert. denied, 474 U.S. 907 (1985) (high school diploma requirement for police officers and corrections officers is valid).
- Subjective criteria The use of subjective decision making is subject to challenge under a disparate impact theory, particularly when used to make employment decisions regarding blue collar jobs. Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988).