[ TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. 433 See Griggs v. Duke Power Co., What is the prima facie case of disparate impact. Even so, plaintiffs have rarely prevailed, because the accommodation process examines each person individually, while the theory of disparate impact is designed to look at the effects on a group. DI claims may challenge practices that result in discrimination. (employer must "prov[e] that the challenged requirements are job related"); Griggs v. Duke Power Co., For example, in this case the Bank supervisors were given complete, unguided discretion in evaluating applicants for the promotions in question. [487 U.S., at 255 Traditionally, this has meant treating people from different groups differently, or "disparate treatment." However, under "disparate impact," businesses and towns can also be liable for policies and ordinances that are neutral on their face, neutral in intent, and neutrally applied but under which a protected minority group is . -432. 0000002652 00000 n The plaintiff in such a case already has proved that the employment practice has an improper effect; it is up to the employer to prove that the discriminatory effect is justified. They also argue that subjective selection practices would be so impossibly difficult to defend under disparate impact analysis that employers would be forced to adopt numerical quotas in order to avoid liability. Why is a bona fide seniority system a facially neutral practice? 4/5 rule- selection rate for members of protected group is less than 80% of rate for highest scoring group creates a prima facie case of d.i. MAJORITY: Held: Disparate-impact claims are cognizable under the Fair Housing Act. We recognize, however, that today's extension of that theory into the context of subjective selection practices could increase the risk that employers will be given incentives to adopt quotas or to engage in preferential treatment. The complaint also alleges that older employees were passed over for rehire in favor of less qualified, younger employees. 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." The majority concluded that there was no abuse of discretion in the District Court's class decertification decisions. ., inadequate training," or his personality had rendered him unqualified for the job. Bd. U.S. 977, 990] denied, No. Later cases have framed the test in similar terms. Watson applied for the vacancy, but the white female who was the supervisor of the drive-in bank was selected instead. been framed in terms of any rigid mathematical formula, have consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation. In McDonnell Douglas and Burdine, this Court formulated a scheme of burden allocation designed "progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." U.S., at 250 As usual, the blog entry is divided into categories and they are: facts; what happened at the district court level; majority opinion/private right of action exists for disparate impact claims; majority opinion/disparate impact should not have been applied to all claims; dissenting opinion by Judge Lee; and thoughts/takeaways. Nevertheless, it bears noting that this statement Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination. 457 457 411 Stay up-to-date with how the law affects your life. 430 176 A key component for establishing a disparate impact case is demonstrating that there is "a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national . U.S., at 715 6 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. This lesson should not be forgotten simply because the "fair form" is a subjective one. -332 (absent proof that height and weight requirements directly correlated with amount of strength deemed "essential to good job performance," requirements not justified as business necessity); Albemarle Paper Co. v. Moody, - Establish a causal connection between the policy and the disparity. Duke Power Co. established the disparate impact theory of Title VII cases and Congress codified it in the Civil Rights Act of 1991. The disparate impact theory of liability is well established as a cognizable theory of liability in fair housing cases. ibid. for blacks to have to count." U.S. 321, 329 Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Clegg, David K. Flynn, and Charles A. Shanor; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, Edward E. Potter, and Garen E. Dodge; for the American Society for Personnel Administration et al. 0000000851 00000 n See Sheet Metal Workers v. EEOC, I, however, find it necessary to reach this issue in order to respond to remarks made by the plurality. U.S. 977, 999] The circuit courts are . The judgment is vacated, and the case is remanded. 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. 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. See 29 CFR 1607.6(B)(1) and (2) (1987) (where selection procedure with disparate impact cannot be formally validated, employer can "justify continued use of the procedure in accord with Federal law"). It is here that the concerns raised by respondent have their greatest force. U.S. 440 In Griggs the Supreme Court held that Title VII proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation. To determine whether an employment practice that causes a disparate impact is proscribed, the touchstone is business necessity. (1986); the presentation of expert testimony, 777 F.2d, at 219-222, 224-225 (criminal justice scholars' testimony explaining job-relatedness of college-degree requirement and psychologist's testimony explaining job-relatedness of prohibition on recent marijuana use); and prior successful experience, Zahorik v. Cornell University, 729 F.2d 85, 96 (CA2 1984) ("generations" of experience reflecting job-relatedness of decentralized decisionmaking structure based on peer judgments in academic setting), can all be used, under appropriate circumstances, to establish business necessity. Unlike JUSTICE STEVENS, we believe that this step requires us to provide the lower courts with appropriate evidentiary guidelines, as we have previously done for disparate treatment cases. %PDF-1.4 % 2014), for this proposition, which is now Second Circuit law. On the one hand, the statute finally codified the theory (as an amendment to Title VII) and essentially superseded the courts holding that plaintiffs had to prove that a practice causing a disparate impact was not a business necessity. U.S. 977, 991] But there is another case that PLF filed a brief in this week concerning the intersection of disparate impact and disparate treatment under the Fair Housing Act. We are persuaded that our decisions in Griggs and succeeding cases could largely be nullified if disparate impact analysis were applied only to standardized selection practices. The plaintiff's initial burden of establishing a prima facie case of disparate treatment is "not onerous," id., at 253, and "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Perhaps the most obvious examples of such functional equivalence have been found where facially neutral job requirements necessarily operated to perpetuate the effects of intentional discrimination that occurred before Title VII was enacted. Again, the echo from the disparate-treatment cases is unmistakable. . U.S. 977, 1009] Respondent and the United States (appearing as amicus curiae) argue that conventional disparate treatment analysis is adequate to accomplish Congress' purpose in enacting Title VII. Id., at 85. The U.S. Congress responded to Wards Cove in the Civil Rights Act of 1991, which provided a partial victory to proponents of the theory of disparate impact. Definition. See, e. g., McDonnell Douglas Corp. v. Green, supra (discretionary decision not to rehire individual who engaged in criminal acts against employer while laid off); Furnco Construction Corp. v. Waters, [ It is a legal theory derived from Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. (1985). xb```b``[ @Pw2$"dTt"g:"::: jw4U/N9lu@SLC!K ( v (p,Fk b`8H320.0 g`e40 ' Ante, at 998. U.S., at 431 In attempting to mimic the allocation of burdens the Court has established in the very different context of individual disparate-treatment claims, the plurality turns a blind eye to the crucial distinctions between the two forms of claims. for the courts, see, e. g., Clady v. County of Los Angeles, 770 F.2d 1421, 1428-1429 (CA9 1985), cert. . Believing that diplomas and tests could become "masters of reality," id., at 433, which would perpetuate the effects of pre-Act discrimination, the Court concluded that such practices could not be defended simply on the basis of their facial neutrality or on the basis of the employer's lack of discriminatory intent. "If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own." [487 U.S. 977, 982]. The Fourteenth and Fifteenth Amendments to the U.S. Constitution prohibit state actions only where there is "disparate treatment" on the basis of race, which, in this context, the U.S. Supreme. , n. 14. Footnote 3 The requirements excluded approximately 40 percent of all women but only 1 percent of men. 433 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." 440 Statistical evidence is crucial throughout disparate impact's three-stage analysis: during (1) the plaintiff's prima facie demonstration of a policy's disparate impact; (2) the defendant's job-related business necessity defense of the discriminatory policy; and (3) the plaintiff's demonstration of an alternative policy without the same discriminatory impact. In Pacific Shores . In fact, a quantitative survey of disparate impact cases over the past four decades found that disparate impact plaintiffs only rarely prevail,3 indicating that the availability of disparate impact liability is not an obstacle to legitimate planning or business objectives. In February 1980, she sought to become supervisor of the tellers in the main lobby; a white male, however, was selected for this job. It is completely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance. v. United States, See Burdine, supra, at 252, n. 5; see also United States Postal Service Bd. U.S. 421, 489 The passage of the Fifteenth Amendment in 1870 guaranteed the right to vote to men of all races, including former slaves. [487 3. Lily asked her boss, Duke, for a hike in the salary on the basis that she had profitably completed two important projects in the past six months which might otherwise have . U.S. 977, 997] 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. 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. [487 (1973), and Texas Dept. [487 0000006009 00000 n See ante, at 994-997. complies with the EEOC's recordkeeping requirements, 29 CFR 1607.4 and 1607.15 (1987), and keeps track of the effect of its practices on protected classes, will be better prepared to document the correlation between its employment practices and successful job performance when required to do so by Title VII. 0000002616 00000 n Click the card to flip . 411 Because the test does not have a cut-off and is only one of many factors in decisions to hire or promote, the fact that blacks score lower does not automatically result in disqualification of disproportionate numbers of blacks as in cases involving cut-offs") (citation omitted); Contreras v. Los Angeles, 656 F.2d 1267, 1273-1274 (CA9 1981) (probative value of statistics impeached by evidence that plaintiffs failed a written examination at a disproportionately high rate because they did not study seriously for it), cert. If petitioner can successfully establish that respondent's hiring practice disfavored black applicants to a significant extent, the bald assertion that a purely discretionary selection process allowed respondent to discover the best people for the job, without any further evidentiary support, would not be enough to prove job-relatedness. U.S. 989 A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed in part. App. U.S., at 426 By: Eli Scher-Zagier . The plurality need not have reached its discussion of burden allocation and evidentiary standards to resolve the question presented. 3 3 The Court held that disparate-impact claims are cognizable under FHA 3604(a) and 3605(a) (referred to in the Court's opinion as 804(a) and 805(a), which were the original section numbers in the 1968 FHA). 401 U.S. 792, 802 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. U.S. 977, 988] 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. U.S. 482 U.S. 977, 1002] 1 In evaluating claims that discretionary employment practices are insufficiently related to legitimate business purposes, it must be borne in mind that "[c]ourts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it." 411 II. [ We are also persuaded that disparate impact analysis is in principle no less applicable to subjective employment criteria than to objective or standardized tests. proves that a particular selection process is sufficiently job related, the process in question may still be determined to be unlawful, if the plaintiff persuades the court that other selection processes that have a lesser discriminatory effect could also suitably serve the employer's business needs. U.S. 977, 1007] In so doing, the plurality projects an application of disparate-impact analysis to subjective employment practices that I find to be inconsistent with the proper evidentiary standards and with the central purpose of Title VII. U.S., at 246 See, e. g., Albemarle Paper Co. v. Moody, We granted certiorari to resolve the conflict. In order to resolve this conflict, we must determine whether the reasons that support the use of disparate impact analysis apply to subjective employment practices, and whether such analysis can be applied in this new context under workable evidentiary standards. In January 1976, Watson was promoted to a position as teller in the Bank's drive-in facility. by Jim Mattox, Attorney General, Mary F. Keller, Executive Assistant Attorney General, and James C. Todd; for the American Civil Liberties Union et al. (1987). 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. See also id., at 338-339 (REHNQUIST, J., concurring in result and concurring in part) ("If the defendants in a Title VII suit believe there to be any reason to discredit plaintiffs' statistics that does not appear on their face, the opportunity to challenge them is available to the defendants just as in any other lawsuit. Bottom line theory- invalid because the focus is on the discrimination against the individual, not only the ultimate result. (1982), quoting Griggs v. Duke Power Co., Furthermore, she argues, if disparate impact analysis is confined to objective tests, employers will be able to substitute subjective criteria having substantially identical effects, and Griggs will become a dead letter. U.S., at 432 The following cases are disparate treatment examples in the categories of Age, Sex and Race Discrimination. U.S., at 430 Ante, at 999. Cf. Still, the theory remains underutilized as a tool to combat policies that adversely impact one or more protected classes or perpetuate segregated housing patterns. U.S. 977, 983]. . is a term that refers to certain situations in which an employer may legally require that employees be of a certain sex, religion, or age. requirement, were not demonstrably related to the jobs for which they were used. U.S. 940 U.S. 977, 992] Footnote 2 In one notable case, a federal district court upheld a universitys requirement that applicants hold a doctoral degree in order to obtain positions as assistant professors, even though the requirement had a disparate impact on African Americans. U.S. 938 U.S. 711, 713 For an employee to claim disparate treatment, he or she must show they were treated differently based on their protected traits. 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