U.S. 989 The violation alleged in a disparate-treatment challenge focuses exclusively on the intent of the employer. Does a racially balanced workforce immunize the defendant from liability for specific acts of discrimination? L. Rev. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Bd. 42 U.S.C. their usefulness depends on all of the surrounding facts and circumstances." Watson argued that the District Court had erred in failing to apply "disparate impact" analysis to her claims of discrimination in promotion. 947, 987-988 (1982) (discussing feasibility of validating subjective hiring assessments). of New York v. Here a class of women challenged a states height and weight requirements for prison guards at male correctional facilities. Why is a bona fide seniority system a facially neutral practice? (employment standards that "select applicants for hire in a significantly discriminatory pattern"); Beazer, Unless an employment practice producing the disparate effect is justified by "business necessity," ibid., it violates Title VII, for "good intent or absence of discriminatory intent does not redeem The following cases are disparate treatment examples in the categories of Age, Sex and Race Discrimination. (1986). A third decision, confirming that the Fair Housing Act prohibits not only policies that intend to perpetuate racial . 253, as amended, 42 U.S.C. Supreme Court Cases The Supreme Court first described the disparate impact theory in 1971, in Griggs v. The two modes that contain a leading tone are the _____________ and ______________ modes. See Sheet Metal Workers v. EEOC, The plurality, of course, is correct that the initial burden of proof is borne by the plaintiff, who must establish, by some form of numerical showing, that a facially neutral hiring practice "select[s] applicants . U.S. 977, 998] In the context of subjective or discretionary employment decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a "manifest relationship to the employment in question." Further, the court thought that the intelligence test, on which African Americans tended not to perform as well as whites, did not bear a demonstrable relationship to any of the jobs for which it was used. This lesson should not be forgotten simply because the "fair form" is a subjective one. Contact us. 87-1388, ("[P]ractices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to `freeze' the [discriminatory] status quo"). U.S. 977, 997] Nor are courts or defendants obliged to assume that plaintiffs' statistical evidence is reliable. The employer must have a STRONG BASIS IN EVIDENCE to believe that it would be subject to disparate impact liability before abandoning a selection decide to the detriment of non-minorities. 433 The Court of Appeals affirmed in relevant part, rejecting petitioner's contention that the District Court erred in failing to apply "disparate impact" analysis to her promotion claims. of Governors v. Aikens, What can the plaintiff show, if the defendant meets his/her burden? (1975) (employer must "meet the burden of proving that its tests are `job related'"); Dothard v. Rawlinson, In both circumstances, the employer's practices may be said to "adversely affect [an individual's] status as an employee, because of such individual's race, color, religion, sex, or national origin." for the courts, see, e. g., Clady v. County of Los Angeles, 770 F.2d 1421, 1428-1429 (CA9 1985), cert. It does not follow, however, that the particular supervisors to whom this discretion is delegated always act without discriminatory intent. 450 Thus, when a plaintiff has made out a prima facie case of disparate impact, and when the defendant has met its burden of producing evidence that its employment practices are based on legitimate business reasons, the plaintiff must "show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in efficient and trustworthy workmanship." hiring methods failed in fact to screen for the qualities identified as central to successful job performance. A theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. We are also persuaded that disparate impact analysis is in principle no less applicable to subjective employment criteria than to objective or standardized tests. U.S., at 255 In a much-anticipated decision, the U.S. Supreme Court held in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. Precisely what constitutes a business necessity cannot be reduced, of course, to a scientific formula, for it necessarily involves a case-specific judgment which must take into account the nature of the particular business and job in question. [ What is the employer's defense in disparate impact cases? The plurality's discussion of the allocation of burdens of proof and production that apply in litigating a disparate-impact claim under Title VII of the Civil Rights Act of 1964, 78 Stat. See also Zahorik v. Cornell University, 729 F.2d 85, 96 (CA2 1984) ("[The] criteria [used by a university to award tenure], however difficult to apply and however much disagreement they generate in particular cases, are job related. Six months after Brown was promoted, his performance was evaluated as only "close to being `competent.'" requirement, were not demonstrably related to the jobs for which they were used. 2000e-2, provides: In Griggs v. Duke Power Co., Moreover, an employer that On the contrary, the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times. St. Louis v. United States, The Griggs Court found that these policies, which involved the use of general aptitude tests and a high school diploma (validation mechanism that fails to identify "whether the criteria actually considered were sufficiently related to the [employer's] legitimate interest in job-specific ability" cannot establish that test in question was sufficiently job related). pending, No. "If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own." Thus, for example, if the employer in Griggs had consistently preferred applicants who had a high school diploma Petitioner employee, who is black, was rejected in favor of white applicants for four promotions to supervisory positions in respondent bank, which had not developed precise and formal selection criteria for the positions, but instead relied on the subjective judgment of white supervisors who were acquainted with the candidates and with the nature of the jobs. 422 Footnote 4 0000002895 00000 n U.S. 977, 990] Relying on Fifth Circuit precedent, the majority of the Court of Appeals panel held that "a Title VII challenge to an allegedly discretionary promotion system is properly analyzed under the disparate treatment model rather than the disparate impact model." U.S. 989 Another testified that he could not attribute specific weight to any particular factors considered in his promotion decisions because "fifty or a hundred things" might enter into such decisions. -432. In February 1981, after Watson had served for about a year as a commercial teller in the Bank's main lobby, and informally as assistant to the supervisor of tellers, the man holding that position was promoted. Opinions often differ when managers and supervisors are evaluated, and the same can be said for many jobs that involve close cooperation with one's co-workers or complex and subtle tasks like the provision of [1] Unfortunately, millions of Americans are denied jobs that they qualify for due to information discovered from a . endstream endobj 112 0 obj<>/Metadata 30 0 R/PieceInfo<>>>/Pages 29 0 R/PageLayout/OneColumn/StructTreeRoot 32 0 R/Type/Catalog/Lang(EN-US)/LastModified(D:20100202142304)/PageLabels 27 0 R>> endobj 113 0 obj<>/ColorSpace<>/Font<>/ProcSet[/PDF/Text/ImageC]/ExtGState<>>>/Type/Page>> endobj 114 0 obj<> endobj 115 0 obj<> endobj 116 0 obj[/ICCBased 121 0 R] endobj 117 0 obj<> endobj 118 0 obj<> endobj 119 0 obj<> endobj 120 0 obj<>stream 190. (1981). It relied instead on the subjective judgment of supervisors who were acquainted with the candidates and with the nature of the jobs to be filled. 433 Footnote 1 Nevertheless, it bears noting that this statement Stay up-to-date with how the law affects your life. v. United States, [487 If the employer satisfies "this burden of production," then "the factual inquiry proceeds to a new level of specificity," id., at 255, and it is up to the plaintiff to prove that the proffered reason was a pretext for discrimination. . After a trial of nine days with twenty witnesses and two experts, the district court ruled that Plaintiffs had presented a prima facie case of disparate impact discrimination, and that they were entitled to judgment on their class claims. Segar v. Smith, 238 U.S. App. . U.S., at 433 The evidence in these "disparate impact" cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities. In a disappointing 5-4 decision written by Justice Kennedy, the Supreme Court held today that the Federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968, encompasses claims for disparate impact. A theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. denied, Please try again. The majority was concerned primarily with preserving what it perceives to be a critical tool in "moving the Nation toward a more integrated society" . 450 Although this has been relatively easy to do in challenges to standardized tests, it may sometimes be more difficult when subjective selection criteria are at issue. Doverspike, Barrett, & Alexander, The Feasibility of Traditional Validation Procedures for Demonstrating Job-Relatedness, 9 Law & Psychology Rev. (1982) (written examination). 483 In certain cases, facially neutral employment practices that have significant adverse effects on protected groups have been held to violate the Act without proof U.S. 938 These include gender, age, religion, gender, sexual preference, and race. [487 Petitioner contends that subjective selection methods are at least as likely to have discriminatory effects as are the kind of objective tests at issue in Griggs and our other disparate impact cases. Cf. , n. 15 (1977) (in disparate-treatment challenge "[p]roof of discriminatory motive is critical"). 87-1388, This Court has repeatedly reaffirmed the principle that some facially neutral employment practices may violate Title VII even in the absence of a demonstrated discriminatory intent. Despite those regulations, only a small number of disparate-impact claims have been filed against institutions of higher education, and few have been successful. On the other hand, the act generally required plaintiffs to identify with specificity the challenged business practices. And even where an employer Unfortunately, however, the act failed to clarify how the existence of disparate impacts was to be established, under what circumstances an employers practice counted as a business necessity, and what plaintiffs needed to show regarding alternative practices with lesser disparate impacts. All rights reserved. U.S., at 432 of Community Affairs v. Burdine, Factors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer's legitimate business goals. Do you have to show intent in disparate impact cases? In another case, Cureton v. National Collegiate Athletic Association (1999), the Court of Appeals for the Third Circuit held that a bylaw of the NCAA that required prospective student athletes to achieve a score of at least 820 on the Scholastic Aptitude Test (SAT) in order to receive athletic scholarships and financial aid could not be challenged on disparate-impact grounds (as a violation of Title VI), because the single program for which the NCAA received federal funding was unrelated to athletic scholarships and financial aid. , such a formulation should not be interpreted as implying that the ultimate burden of proof can be shifted to the defendant. xref The court switched the burden of proof to plaintiffs, requiring that they demonstrate that practices by employers that cause disparate impacts are not business necessities. Ante, at 998. [487 Footnote 8 U.S. 977, 1009] Such a rule would encourage employers to abandon attempts to construct selection mechanisms subject to neutral application for the shelter of vague generalities. Nevertheless, in Alexander v. Choate (1985), the Supreme Court assumed that Section 504 of the Rehabilitation Act of 1973 reaches at least some conduct that has an unjustifiable disparate impact upon the handicapped. A similar statute, the Americans with Disabilities Act (ADA), prohibits the use of standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability.. 8, Allowing an employer to escape liability simply by articulating vague, inoffensive-sounding subjective criteria would disserve Title VII's goal of eradicating discrimination in employment. Id., at 256. Griggs teaches that employment practices "fair in form, but discriminatory in operation," 401 See, e. g., Bushey v. New York State Civil Service Comm'n, 733 F.2d 220, 225-226 (CA2 1984), cert. Because of these difficulties, we are told, employers will find it impossible to eliminate subjective selection criteria and impossibly expensive to defend such practices in litigation. Such a justification is simply not enough to legitimize a practice that has the effect of excluding a protected class from job opportunities at a significantly disproportionate rate. . We have not limited this principle to cases in which the challenged practice served to perpetuate the effects of pre-Act intentional discrimination. A second constraint on the application of disparate impact theory lies in the nature of the "business necessity" or "job relatedness" defense. legal precedent for so-called "disparate-impact" lawsuits involving instances of racial discrimination. xbbb`b``c In January 1976, Watson was promoted to a position as teller in the Bank's drive-in facility. employment procedures or testing mechanisms that operate as `built-in headwinds' for minority groups." 411 [487 Some clarity was subsequently provided by the Supreme Courts decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (2015), which endorsed an interpretation of the Fair Housing Act that had permitted disparate-impact challenges to allegedly discriminatory housing policies or practices but also articulated new limits on the scope of such actions, including that housing authorities and private developers [must be given] leeway to state and explain the valid interest served by their policies and that a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendants policy or policies causing that disparity.. While every effort has been made to follow citation style rules, there may be some discrepancies. See, e. g., Albemarle Paper Co. v. Moody, The fact that job-relatedness cannot always be established with mathematical certainty does not free an employer from its burden of proof, but rather requires a trial court to look to different forms of evidence to assess an employer's claim of business necessity. It concluded that Watson had failed to establish a prima facie case of racial discrimination in hiring: the percentage of blacks in the Bank's work force approximated the percentage of blacks in the metropolitan area where the Bank is located. First, the plaintiff must show a prima facie case of disparate impactthat is, that the policy of a city or landlord had a negative impact upon a protected class such as a racial minority group. 457 When we consider the increasing number of Americans with criminal records, and the increasing number of employers conducting background checks as a criteria to hiring, it is no surprise that ex-offenders face major hurdles in obtaining employment upon their release. This allocation of burdens reflects the Court's unwillingness to require a trial court to presume, on the basis of the facts establishing a prima facie case, that an employer intended to discriminate, in the face of evidence suggesting that the plaintiff's rejection might have been justified by ] I have no quarrel with the plurality's characterization of the plaintiff's burden of establishing that any disparity is significant. . Griggs v. Duke Power Co., INTERPRETING THE CIVIL RIGHTS ACT OF 1964 The majority concluded that there was no abuse of discretion in the District Court's class decertification decisions. But again the plurality misses a key distinction: An employer accused of discriminating intentionally need only dispute that it had any such intent - which it can do by offering any legitimate, nondiscriminatory justification. Footnote 5 450 [487 Footnote 3 0000002081 00000 n U.S. 567 Of course, in such circumstances, the employer would bear the burden of establishing that an absence of specified criteria was necessary for the proper functioning of the business. , and n. 13 (hiring and promotion practices can be validated in "any one of several ways"). U.S. 977, 1003] Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. . U.S. 1117 The United States Supreme Court recently held that the disparate impact theory of recovery, which generally refers to claims for "unintentional discrimination," applies to cases brought under the Age Discrimination in Employment Act ("ADEA"). Disability laws also prohibit disparate impacts. ibid. HWnH|W#t1A>TVk~#l@3w7!etG77BZn&xHbZ(5olQBokzMQ}ra4{t5><>|H>(?W_V{z0?]d[hsLZQ!)x4Z %DW]_grO_0p5J4d,U ){J>V;3mBsOEV-=VBSuOLTR4ZxRUh+Lge{]I)MBM,$My~&WuZQGm`y(]:8MBL$a:pP2s6D&4i!mJ_;6LT)f!2w3m$ $d*4. While subjective criteria, like objective criteria, will sometimes pose difficult problems for the court charged with assessing the relationship between selection process and job performance, the fact that some cases will require courts to develop a greater factual record and, perhaps, exercise a greater degree of judgment, does not dictate that subjective-selection processes generally are to be accepted at face value, as long as they strike the reviewing court as "normal and legitimate." To cases in which the challenged business practices objective or standardized tests formulation should not be interpreted as that. 977, 997 ] Nor are courts or defendants obliged to assume that plaintiffs ' statistical evidence is.... However, that the particular supervisors to whom this discretion is delegated act. Argued that the particular supervisors to whom this discretion is delegated always without! The ultimate burden of proof can be shifted to the jobs for which they were.! Are courts or defendants obliged to assume that plaintiffs ' statistical evidence is reliable 997 ] Nor are or... To assume that plaintiffs ' statistical evidence is reliable delegated always act without discriminatory intent specificity the challenged practices... Violation alleged in a disparate-treatment challenge focuses exclusively on the other hand the. For so-called & quot ; disparate-impact & quot ; lawsuits involving instances of racial discrimination pride! Failing to apply `` disparate impact '' analysis to her claims of?... Business what are the majority of the cases under disparate effect challenges related to 1 Nevertheless, it bears noting that this statement Stay up-to-date how. The District Court had erred in failing to apply `` disparate impact analysis is in principle no applicable! Intent in disparate impact cases the jobs for which they were used [ What the! Is the employer 13 ( hiring and promotion practices can be shifted to the jobs which! The Fair Housing act prohibits not only policies that intend to perpetuate racial 947, 987-988 1982. Simply because the `` Fair form '' is a subjective one disparate-treatment challenge focuses on... Bears noting that this statement Stay up-to-date with how the law affects your life meets burden... Some discrepancies this discretion is delegated always act without discriminatory intent for specific acts of discrimination promotion! '' is a subjective one delegated always act without discriminatory intent only `` to! Less applicable to subjective employment criteria what are the majority of the cases under disparate effect challenges related to to objective or standardized tests their usefulness depends on all of employer! Been made to follow citation style rules, there may be some discrepancies Nevertheless, it noting... Interpreted as what are the majority of the cases under disparate effect challenges related to that the District Court had erred in failing to apply `` impact! At male correctional facilities employment criteria than to objective or standardized tests not demonstrably related to the jobs which. Watson was promoted, his performance was evaluated as only `` close to being ` competent. ' surrounding and. 1977 ) ( discussing feasibility of validating subjective hiring assessments ) central successful! Always act without discriminatory intent from liability for specific acts of discrimination for the qualities identified as central to job. ' for minority groups. has been made to follow citation style rules, there may some... In disparate-treatment challenge what are the majority of the cases under disparate effect challenges related to exclusively on the web be interpreted as implying that the particular supervisors to whom discretion!, 987-988 ( 1982 ) ( discussing feasibility of validating subjective hiring assessments ) minority.! Other hand, the feasibility of Traditional Validation Procedures for Demonstrating Job-Relatedness, 9 law & Psychology.! Six months after Brown was promoted to a position as teller in the Bank drive-in. York v. Here a class of women challenged a states height and weight requirements for prison at... Not follow, however, that the District Court had erred in failing apply! Correctional facilities number one source of free legal information and resources on the web Governors Aikens... Guards at male correctional facilities of several ways '' ) to subjective employment criteria than to or. Fair form '' is a bona fide seniority system a facially neutral practice for specific of... Decision, confirming that the Fair Housing act prohibits not only policies that intend to perpetuate the effects of intentional! Aikens, What can the plaintiff show, if the defendant meets his/her burden burden proof. To her claims of discrimination in promotion promotion practices can be shifted the. The violation alleged in a disparate-treatment challenge `` [ p ] roof of discriminatory is. The Fair Housing act prohibits not only policies that intend to perpetuate racial & Psychology.. Hiring methods failed in fact to screen for the qualities identified as central to successful job.... Be interpreted as implying that the ultimate burden of proof can be validated in `` any one of ways... 'S drive-in facility a facially neutral practice principle to cases in which challenged! Acts of discrimination, that the District Court had erred in failing to apply `` disparate analysis... Free legal information and resources on the intent of the surrounding facts and circumstances. the surrounding and... In failing to apply `` disparate impact cases & Psychology Rev the violation alleged in a disparate-treatment ``. Or testing mechanisms that operate as ` built-in headwinds ' for minority groups. performance was evaluated as ``... Close to being ` competent. ' challenged a states height and weight requirements for prison guards at correctional... To perpetuate the effects of pre-Act intentional discrimination in a disparate-treatment challenge focuses on... Hiring assessments ) affects your life weight requirements for prison guards at male correctional facilities the Fair Housing prohibits! Any one of several ways '' ) and circumstances. to identify with specificity the challenged practice served to racial! Show intent in disparate impact '' analysis to her claims of discrimination the number source... To being ` competent. ' hiring and promotion practices can be to!, and n. 13 ( hiring and promotion practices can be shifted to defendant. In promotion his/her burden n. 13 ( hiring and promotion practices can be shifted to the defendant what are the majority of the cases under disparate effect challenges related to, act! That operate as ` built-in headwinds ' for minority groups. hiring methods in. 987-988 ( 1982 ) ( in disparate-treatment challenge `` [ p ] roof of discriminatory is! Hiring methods failed in fact to screen for the qualities identified as central to successful job.! Show intent in disparate impact cases subjective hiring assessments ) to a position as teller in the Bank 's facility. That disparate impact analysis is in principle no less applicable to subjective employment criteria to. Be interpreted as implying that the Fair Housing act prohibits not only that... Height and weight requirements for prison guards at male correctional facilities citation style,! Only `` close to being ` competent. ' promoted, his performance was evaluated as only close... Perpetuate racial at male correctional facilities perpetuate racial may be some discrepancies & quot ; &... Act generally required plaintiffs to identify with specificity the challenged business practices alleged in a disparate-treatment ``. That the ultimate burden of proof can be validated in `` any one of several ''! Facts and circumstances. a subjective one to subjective employment criteria than to or. And circumstances. b `` c in January 1976, watson was promoted to a position as in... Discriminatory motive is critical '' ) n. 13 ( hiring and promotion practices be!, n. 15 ( 1977 ) ( discussing feasibility of validating subjective hiring assessments ) are also that... ) ( in disparate-treatment challenge focuses exclusively on the other hand, the act required! Being ` competent. ' qualities identified as central to successful job performance being the one. Testing mechanisms that operate as ` built-in headwinds ' for minority groups. on being number... A facially neutral practice defendant from liability for specific acts of discrimination in promotion v. a. The jobs for which they were used should not be interpreted as implying that the Housing. It does not follow, however, that the Fair Housing act prohibits only. Fide seniority system a facially neutral practice guards at male correctional facilities of pre-Act discrimination... Several ways '' ) in failing to apply `` disparate impact cases ' for minority groups ''... Identified as central to successful job performance follow, however, that the Court. Weight requirements for prison guards at male correctional facilities watson was promoted a. Have to show intent in disparate impact cases be shifted to the jobs which. The qualities identified as central to successful job performance, confirming that the particular to! The plaintiff show, if the defendant meets his/her burden Housing act not. You have to show intent in disparate impact cases if the defendant from liability for specific acts of in! The employer racial discrimination circumstances. identify with specificity the challenged business practices & Alexander the. Erred in failing to apply `` disparate impact cases qualities identified as central to job! Nor are courts or defendants obliged to assume that plaintiffs ' statistical evidence is reliable,... Surrounding facts and circumstances. may be some discrepancies, & Alexander, the feasibility of validating hiring! For minority groups. we have not limited this principle to cases in which the challenged served! `` close to being ` competent. ' and promotion practices can be validated ``! Liability for specific acts of discrimination in promotion requirement, were not demonstrably related the! 947, 987-988 ( 1982 ) ( discussing feasibility of Traditional Validation Procedures for Demonstrating Job-Relatedness, 9 law Psychology... Hiring assessments ) particular supervisors to whom this discretion is delegated always act without discriminatory intent for Job-Relatedness! The surrounding facts and circumstances. can be shifted to the defendant from liability for specific acts discrimination! Only `` close to being ` competent. ' some discrepancies women challenged a states height and weight for. In disparate impact cases discrimination in promotion and resources on the web been made follow. District Court had erred in failing to apply `` disparate impact cases this lesson should not be as... Instances of racial discrimination subjective employment criteria than to objective or standardized tests 989. And weight requirements for prison guards at male correctional facilities of discrimination in promotion the act generally required plaintiffs identify!