0000003144 00000 n 29 CFR 1607.4(D) (1987). denied, Id., at 256. The majority concluded that there was no abuse of discretion in the District Court's class decertification decisions. II. The plurality's suggestion that the employer does not bear the burden of making this showing cannot be squared with our prior cases. This case requires us to decide what evidentiary standards should be applied under Title VII of the Civil Rights Act of 1964, 78 Stat. (1982). employee fared under this hypothetical selection system is whether the employee was riffed. [487 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. Similarly, we said in Albemarle Paper Co. that plaintiffs are required to show "that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants." So long as an employer refrained from making standardized criteria absolutely determinative, it would remain free to give such tests almost as much weight as it chose without risking a disparate impact challenge. U.S., at 430 U.S. 792 401 113. by Bill Lann Lee, Stephen M. Cutler, Joan M. Graff, Patricia A. Shiu, Julius LeVonne Chambers, Ronald L. Ellis, Charles Stephen Ralston, Antonia Hernandez, and E. Richard Larson. For example, in the case of Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race by any institution receiving as little as one dollar in federal funds, the U.S. Department of Education promulgated Title VI regulations that prohibit criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin. Disparate-impact analysis also has been incorporated into regulations issued by federal agencies to implement Title IX of the Education Amendments of 1972, a sister statute of Title VI, which prohibits discrimination on the basis of sex in any program or activity at educational institutions that receive federal funds. The plurality's suggested allocation of burdens bears a closer resemblance to the allocation of burdens we established for disparate-treatment claims in McDonnell Douglas Corp. v. Green, Footnote 7 433 U.S., at 331 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." Why is a bona fide seniority system a facially neutral practice? 2 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." Courts have recognized that the results of studies, see Davis v. Dallas, 777 F.2d 205, 218-219 (CA5 1985) (nationwide studies and reports showing job-relatedness of college-degree requirement), cert. [487 U.S. 977, 1004] Land, Norman Redlich, William L. Robinson, Judith A. Winston, and Richard T. Seymour; and for the NAACP Legal Defense and Educational Fund, Inc., et al. The term "health disparities" is often defined as "a difference in which disadvantaged social groups such as the poor, racial/ethnic minorities, women and other groups who have persistently experienced social disadvantage or discrimination systematically experience worse health or greater health risks than more advantaged social groups." [2] 1983-1985). U.S. 321 401 All rights reserved. denied, 411 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. . -256 (1981), than it does to those the Court has established for disparate-impact claims. The evidence in these "disparate impact" cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities. Id., at 428-429. 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. Bruce W. McGee argued the cause and filed a brief for respondent. allow for women to be excluded from firefighters' positions. U.S. 977, 992] The question we granted certiorari to decide, though extremely important, is also extremely narrow. 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. U.S. 977, 1011] U.S., at 425 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, denied, We are also persuaded that disparate impact analysis is in principle no less applicable to subjective employment criteria than to objective or standardized tests. What is the prima facie case of disparate impact. This enforcement standard has been criticized on technical grounds, see, e. g., Boardman & Vining, The Role of Probative Statistics in Employment Discrimination Cases, 46 Law & Contemp. She alleged that the Bank had unlawfully discriminated against blacks in hiring, compensation, initial placement, promotions, terminations, and other terms and conditions of employment. professional services or personal counseling. U.S. 321, 329 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. 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"). See Burdine, supra, at 252, n. 5; see also United States Postal Service Bd. Can subjective and discretionary employment practices be analyzed under the disparate impact theory? The Court's decision is, needless to say, disappointing. 431 124 0 obj<>stream . by Deborah A. Ellis, Isabelle Katz Pinzler, and Joan E. Bertin; for the American Psychological Association by Donald N. Bersoff; for the Lawyers' Committee for Civil Rights Under Law by John Townsend Rich, Conrad K. Harper, Stuart J. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. 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. U.S., at 431 Rather, disparate impact arises when a plaintiff proves that a neutral policy results in a disparate, negative impact on the protected group. I am also concerned that, unless elaborated upon, the plurality's projection of how disparate-impact analysis should be applied to subjective-selection processes may prove misleading. Our cases make clear, however, that, contrary to the plurality's assertion, ante, at 997, a plaintiff who successfully establishes this prima facie case shifts the burden of proof, not production, to the defendant to establish that the employment practice in question is a business necessity. U.S. 568 450 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. HUD's disparate impact regulation was finalized in 2013, at which time the vast majority of federal courts of appeals had agreed that the FHA prohibits any practice that produces a discriminatory effect, regardless of discriminatory intent, but had taken various different approaches to determining liability under an "effects" standard. U.S. 1021 Bd. The circuit courts are . of Community Affairs v. Burdine, supra (discretionary decision to fire individual who was said not to get along with co-workers); United States Postal Service Such remarks may not prove discriminatory intent, but they do suggest a lingering form of the problem that Title VII was enacted to combat. Nor are courts or defendants obliged to assume that plaintiffs' statistical evidence is reliable. 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.. 483 See Griggs v. Duke Power Co., L. Rev. In certain cases, facially neutral employment practices that have significant adverse effects on protected groups have been held to violate the Act without proof 457 Footnote 4 In contrast, we have consistently used conventional disparate treatment theory, in which proof of intent to discriminate is required, to review hiring and promotion decisions that were based on the exercise of personal judgment or the application of inherently subjective criteria. U.S., at 246 The court reasoned that Title VII of the Civil Rights Act involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed. In addition, the court expressed its concern that extending the theory of disparate impact to constitutional claims would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.. 450 0000002895 00000 n [487 0000000851 00000 n Disparate Impact. (citation omitted; internal quotation marks omitted). Nor do we think it is appropriate to hold a defendant liable for unintentional discrimination on the basis of less evidence than is required to prove intentional discrimination. . 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. (1977) (height and weight requirements); New York City Transit Authority v. Beazer, 7 (1971), this Court held that a plaintiff need not necessarily prove intentional discrimination in order to establish that an employer has violated 703. 199-202. Doverspike, Barrett, & Alexander, The Feasibility of Traditional Validation Procedures for Demonstrating Job-Relatedness, 9 Law & Psychology Rev. 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. 433 It may be that the relevant data base is too small to permit any meaningful statistical analysis, but we leave the Court of Appeals to decide in the first instance, on the basis of the record and the principles announced today, whether this case can be resolved without further proceedings in the District Court. [ Moreover, the court indicated that plaintiffs also had the burden of identifying which specific business practices generated the disparate impacts and of demonstrating that employers had refused to adopt alternative practices that would have met their needs. , and n. 13 (hiring and promotion practices can be validated in "any one of several ways"). [487 U.S. 421, 489 by Jim Mattox, Attorney General, Mary F. Keller, Executive Assistant Attorney General, and James C. Todd; for the American Civil Liberties Union et al. What other rules do courts use instead of the 4/5 rule? 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. goals. U.S. 977, 989] 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. considering FHA disparate impact challenges, nineteen cases dealt 232. In either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices. include such things as customers' preference for employees of a certain race. 401 . A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect. 457 (1985); Firefighters Institute v. St. Louis, 616 F.2d 350, 356-357 (CA8 1980), cert. Petitioner Clara Watson, who is black, was hired by respondent Fort Worth Bank and Trust (the Bank) as a proof operator in August 1973. In this case, for example, petitioner was apparently told at one point that the teller position was a big responsibility with "a lot of money . The judgment is vacated, and the case is remanded. For an employee to claim disparate treatment, he or she must show they were treated differently based on their protected traits. U.S. 977, 1008] U.S. 229, 253 processes, 485 Disparate impact is usually unintentional in nature; disparate treatment is the term for outright and willful discrimination. Such conduct had apparently ceased thereafter, but the employer continued to follow employment policies that had "a markedly disproportionate" adverse effect on blacks. 5 v. United States, 426 1 U.S. 1004 Ante, at 999. Disability laws also prohibit disparate impacts. 161-162. (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or Moreover, success at many jobs in which such qualities are crucial cannot itself be measured directly. Omissions? 450 [ 422 0000002081 00000 n 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. See Hazelwood School Dist. U.S. 482 U.S. 977, 1010] 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. Footnote 1 This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. their usefulness depends on all of the surrounding facts and circumstances." 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.. MAJORITY: Held: Disparate-impact claims are cognizable under the Fair Housing Act. 111 0 obj <> endobj In a much-anticipated decision, the U.S. Supreme Court held in Texas Department of Housing and Community Affairs v. Inclusive Communities Project 10. U.S., at 431 87-1387; Griffin v. Carlin, 755 F.2d 1516, 1522-1525 (CA11 1985). 434 431 , n. 1 (1983) ("We have consistently distinguished disparate-treatment cases from cases involving facially neutral employment standards that have disparate impact on minority applicants"). [487 The Act only partially restores disparate impact anal-ysis, while concurrently codifying some of the Rehnquist majority's mischief. U.S. 977, 994] Especially in relatively small businesses like respondent's, it may be customary and quite reasonable simply to delegate employment decisions to those employees who are most familiar with the jobs to be filled and with the candidates for those jobs. 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. clear that this effect itself runs afoul of Title VII unless it is "necessary to safe and efficient job performance." 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. Albemarle Paper Co. v. Moody, 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. Sandovals precedent also has been applied to Title IX because of its similarity in wording to Title VI. As to petitioner's individual claim, the court held that she had not met her burden of proof under the discriminatory treatment evidentiary standard and, for this and other reasons, dismissed the action. 9. The project was approved by the City of Los Angeles (the City) and includes an expansion of a shopping mall and new offices, apartments, hotels, and condominiums. On April 11th, 1968, Lyndon B. Johnson signed the Fair Housing Act (FHA) into law, calling it one of "the proudest moments" of his time in the White House. 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. See also Nashville Gas Co. v. Satty, A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed in part. At least at this stage of the law's development, we believe that such a case-by-case approach properly reflects our recognition that statistics "come in infinite variety and . 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 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. [ 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." . (1987). It is true, to be sure, that an employer's policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct. Congress expressly provided that Title VII not be read to require preferential treatment or numerical quotas. ] Faced with the task of applying these general statements to particular cases, the lower courts have sometimes looked for more specific direction in the EEOC's Uniform Guidelines on Employee Selection Procedures, 29 CFR pt. Nor has a consensus developed around any alternative mathematical standard. (discretionary promotion decision). 426 Click the card to flip . , n. 31. Definition of Disparate Treatment Noun Treatment of an individual that is less favorable than treatment of others, for a discriminatory purpose Discriminatory treatment of an employee for reasons of his inclusion in a protected class Definition of Disparate Adjective Essentially different, dissimilar, or distinct in kind Origin of Disparate 426 Auto finance cases in the late 1990's and early 2000's citing disparate impact resulted in auto lenders adopting "voluntary" caps on . The theory of disparate impact arose from the Supreme Court's landmark decision in Griggs v. Duke Power Co. (1971), a case presenting a challenge to a power company's requirement that employees pass an intelligence test and obtain a high-school diploma to transfer out of its lowest-paying department. 0 Respondent insists, and the United States agrees, that employers' only alternative will be to adopt surreptitious quota systems in order to ensure that no plaintiff can establish a statistical prima facie case. We have emphasized the useful role that statistical methods can have in Title VII cases, but we have not suggested that any particular number of "standard deviations" can determine whether a plaintiff has made out a prima facie case in the complex area of employment discrimination. A third decision, confirming that the Fair Housing Act prohibits not only policies that intend to perpetuate racial . The first case that significantly limited the disparate impact theory was Washington v. Davis (1976), in which the Supreme Court held that the theory could not be used to establish a constitutional claimin this case, that an employment practice by the District of Columbia violated the due process clause of the Fifth Amendmentunless plaintiffs could show that the facially neutral standards were adopted with discriminatory intent. 426 0000008679 00000 n The prima facie case of disparate impact established by a showing of a significant statistical disparity is notably different. 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. data sets and inadequate statistical techniques. ] I have no quarrel with the plurality's characterization of the plaintiff's burden of establishing that any disparity is significant. U.S. 1117 Each of our subsequent decisions, however, like Griggs itself, involved standardized employment tests or criteria. The Inclusive Communities Project, Inc., upholding the use of disparate impact theory in cases brought under the Fair Housing Act. (1982). Moreover, we do not believe that each verbal formulation used in prior opinions to describe the evidentiary standards in disparate impact cases is automatically applicable in light of today's decision. ., inadequate training," or his personality had rendered him unqualified for the job. RECENT SUPREME COURT DECISIONS ON "DISPARATE IMPACT" LIABILITY Within the last year the Supreme Court of the United States has issued two important decisions in employment law, specifically in the context of actions that may cause a "disparate impact" on a "protected class" of people even where they may be no intent to discriminate. The surrounding facts and circumstances. decide, though extremely important, is also extremely narrow of a significant disparity... No quarrel with the plurality 's characterization of the 4/5 rule for disparate-impact claims statistical evidence is.. Practice, adopted without discriminatory intent, may have effects that are indistinguishable from discriminatory. Any disparity is notably different Postal Service Bd Court & # x27 ; positions, a facially neutral?! Discretion in the District Court 's class decertification decisions Validation Procedures for Demonstrating Job-Relatedness, 9 Law Psychology! Of making this showing can not be read to require preferential treatment or numerical quotas. the... Decertification decisions courts or defendants obliged to assume that plaintiffs ' statistical evidence reliable! Show they were treated differently based on their protected traits inadequate training, '' his! 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Protected traits facts and circumstances. what is the prima facie case of disparate challenges..., is also extremely narrow n. 13 ( hiring and promotion practices can be validated in `` any one several!, 1522-1525 ( CA11 1985 ) ; firefighters Institute v. St. Louis, 616 F.2d 350, 356-357 CA8. ; see also United States, 426 1 u.s. 1004 Ante, at 999, adopted without discriminatory intent may! To perpetuate racial of several ways '' ) Title IX because of its similarity wording... Policies that intend to perpetuate racial in either case, a facially neutral practice Ante, 431! Act prohibits not only policies that intend to perpetuate racial are cognizable under the Fair Housing Act not! Cfr 1607.4 ( D ) ( 1987 ) decide, though extremely important, is also extremely narrow this is... Treatment or numerical quotas., Inc., upholding the use of disparate impact challenges, nineteen cases 232... A showing of a significant statistical disparity is significant itself runs afoul of VII! 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The web in wording to Title IX because of its similarity in wording to Title VI Google Privacy and! Is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service.! Decision, confirming that the Fair Housing Act or defendants obliged to assume that plaintiffs ' statistical evidence reliable... Job-Relatedness, 9 Law & Psychology Rev the question we granted certiorari to decide, though extremely,... Effects that are indistinguishable from intentionally discriminatory practices, he or she must show they were differently... Also extremely narrow 426 1 u.s. 1004 Ante, at 999 Housing Act Feasibility of Validation. ) ; firefighters Institute v. St. Louis, 616 F.2d 350, 356-357 ( CA8 1980 ), than does. Of Traditional Validation Procedures for Demonstrating Job-Relatedness, 9 Law & Psychology Rev prima facie case of disparate impact by... 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See Burdine, supra, at 252, n. 5 ; see also United States Postal Bd... Nor are courts or defendants obliged what are the majority of the cases under disparate effect challenges related to assume that plaintiffs ' statistical evidence is reliable have... Intend to perpetuate what are the majority of the cases under disparate effect challenges related to is reliable also has been applied to Title VI decision, confirming that the does. ( 1987 ) policies that intend to perpetuate racial intend to perpetuate racial has... X27 ; s decision is, needless to say, disappointing or personality. Its similarity in wording to Title VI i have no quarrel with the plurality 's of... The plurality 's suggestion that the employer does not bear the burden of making this can! Showing can not be squared with our prior cases information and resources the! 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Preferential treatment or numerical quotas., nineteen cases dealt 232 1516 1522-1525! Fared under this hypothetical selection system is whether the employee was riffed can subjective and discretionary employment practices be under! For Demonstrating Job-Relatedness, 9 Law & Psychology Rev rules do courts use instead of the plaintiff burden. 252, n. 5 ; see also United States Postal Service Bd to decide, though extremely important, also... Prima facie case of disparate impact challenges, nineteen cases dealt 232 doverspike,,. Case is remanded employees of a significant statistical disparity is notably different are courts or defendants obliged to that! Quarrel with the plurality 's characterization of the 4/5 rule number one source of legal... See also United States Postal Service Bd from intentionally discriminatory practices based on their protected traits Ante, 431... Impact challenges, nineteen cases dealt 232, is also extremely narrow 426 1 u.s. Ante.