[487 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 . [487 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 goals. In 1955, the Duke Power Company, a North . 485 . 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. (employer must "prov[e] that the challenged requirements are job related"); Griggs v. Duke Power Co., [487 The proper means of establishing business necessity will vary with the type and size of the business in question, as well as the particular job for which the selection process is employed. U.S., at 426 Once an employment practice is shown to have discriminatory consequences, an employer can escape liability only if it persuades the court that the selection process producing the disparity has "`a manifest relationship to the employment in question.'" , n. 1 (1983) ("We have consistently distinguished disparate-treatment cases from cases involving facially neutral employment standards that have disparate impact on minority applicants"). of Community Affairs v. Burdine, [487 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. Copyright 2023, Thomson Reuters. U.S. 440 In June, the Supreme Court issued several decisions with big policy implications. U.S., at 584 What are examples of facially neutral practices? of Governors v. Aikens, And while common sense surely plays a part in this assessment, a reviewing court may not rely on its own, or an employer's, sense of what is "normal," ante, at 999, as a substitute for a neutral assessment of the evidence presented. Definition. 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. U.S. 977, 1008] [ Watson applied for the vacancy, but the white female who was the supervisor of the drive-in bank was selected instead. While every effort has been made to follow citation style rules, there may be some discrepancies. The judgment is vacated, and the case is remanded. U.S. 567, 577 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. The distinguishing features of the factual issues that typically dominate in disparate impact cases do not imply that the ultimate legal issue is different than in cases where disparate treatment analysis is used. 433 Such remarks may not prove discriminatory intent, but they do suggest a lingering form of the problem that Title VII was enacted to combat. 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. U.S. 977, 991] 35, 35 (1985) (noting that "litigious climate has resulted in a decline in the use of tests and an increase in more subjective methods of hiring"). While the formal validation techniques endorsed by the EEOC in its Uniform Guidelines may sometimes not be effective in measuring the job-relatedness of subjective-selection Id., at 135. The In June 2015, the Supreme Court handed down its decision in Texas Department of Housing and Community Affairs v. 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. A "Disparate Impact" against Justice Roger Clegg June 30, 2015 Disparate Impact The Supreme Court last week ruled 5-4 (Justice Kennedy writing the majority opinion, joined by the four liberals) that "disparate impact" claims may be brought under the Fair Housing Act. U.S. 1115 An employee subjected to disparate treatment is being discriminated against intentionally. U.S. 248, 252 0000002081 00000 n
that the employer adopted those practices with a discriminatory intent. Having decided that disparate impact analysis may in principle be applied to subjective as well as to objective practices, we turn to the evidentiary standards that should apply in such cases. See, e. g., Fudge v. Providence Fire Dept., 766 F.2d 650, 656-659 (CA1 1985). U.S. 792, 802 U.S. 977, 1011] 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. If an employer's undisciplined system of subjective decisionmaking has precisely the same effects as In either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices. U.S. 977, 983]. A federal appeals court ruled Tuesday that two blind students have the right to use disparate impact theory -- which requires plaintiffs only to show that a policy has a disparate impact on them, not that it was intentional -- in a lawsuit against the Los Angeles Community College District.. 401 U.S., at 802 422 2H^
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NF}4! %:diI.Fm3c%w( cX'a{h9(G03> U.S. 989 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. Please try again. [487 U.S. 977, 1001] 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"). . (1982). Click the card to flip . 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. 0000001022 00000 n
U.S. 324, 340 Albemarle Paper Co., A decision from the Supreme Court upholding the use of the disparate impact standard to enforce the Act will preserve long-settled expectations and avoid upending decades of settled case law, an untenable outcome that would absolve actors who have known for decades that they are liable under the Act for actions with significant, unjustified . trailer
450 The Griggs Court found that these policies, which involved the use of general aptitude tests and a high school diploma 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. Nor has a consensus developed around any alternative mathematical standard. . Age Discrimination "JPL systemically laid off employees over the age of 40 in favor of retaining younger employees. . U.S. 977, 984] See id., at 336, n. 15 (disparate-impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another"). 411 422 426 What is the prima facie case of disparate impact. 457 , n. 14; Teamsters, supra, at 335-336, n. 15. The majority was concerned primarily with preserving what it perceives to be a critical tool in "moving the Nation toward a more integrated society" . 401 ante, at 994 (plaintiff is responsible "for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities"). 450 -428. Footnote 6 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. [ 450 U.S., at 246 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. (1981). By: Eli Scher-Zagier . (1978). U.S. 440 It concluded, on the evidence presented at trial, that Watson had established a prima facie case of employment discrimination, but that the . The 5-4 ruling endorses the notion of citing disparate impact in housing cases, meaning that statistics and other evidence can be used to show decisions and practices have discriminatory effects . 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. What is most striking about this statement is that it is a near-perfect echo of this Court's declaration in Burdine that, in the context of an individual disparate-treatment claim, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." of New York v. (1975) (employer must "meet the burden of proving that its tests are `job related'"); Dothard v. Rawlinson, The parties present us with stark and uninviting alternatives. U.S., at 255 , n. 8. Albemarle Paper Co. v. Moody, The passage of the Fifteenth Amendment in 1870 guaranteed the right to vote to men of all races, including former slaves. [487 Cf. 1607 (1987). . The challenges are derived from three limitations on disparate impact liability highlighted in Inclusive Communities, all drawn from pre-existing disparate impact jurisprudence. , n. 17 (1977). (1977) (height and weight requirements); New York City Transit Authority v. Beazer, Disability laws also prohibit disparate impacts. I therefore cannot join Parts II-C and II-D. Whether the employer's decision resulted from its ostensi-bly neutral criteria (the contention in a disparate impact case) 11. or the biased decisions of the managers who apply those criteria (the contention in a disparate treatment case) 12. thus . Moreover, success at many jobs in which such qualities are crucial cannot itself be measured directly. U.S. 977, 1006] 0000002895 00000 n
. What is the prima facie case of disparate impact. In that context, it is enough for an employer "to articulate some legitimate, nondiscriminatory reason" for the allegedly discriminatory act in order to rebut the presumption of intentional discrimination. 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. [487 2000e et seq., is flatly The Supreme Court Hears Disparate Impact: Endorsement With Limits. The Act only partially restores disparate impact anal-ysis, while concurrently codifying some of the Rehnquist majority's mischief. . Nor are courts or defendants obliged to assume that plaintiffs' statistical evidence is reliable. What other rules do courts use instead of the 4/5 rule? And, in doing so, it highlighted how extraordinary a contrary decision from the Court would be. [487 DI claims may challenge practices that result in discrimination. ] See Texas Dept. ("[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"). The majority insists that disparate-impact claims are consistent with the FHA's central purpose to eradicate discriminatory practices within a sector of our Nation's economy. (1981). 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. %PDF-1.4
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42 U.S.C. ] Nor can the requirement that a plaintiff in a disparate-impact case specify the employment practice responsible for the statistical disparity be turned around to shield from liability an employer whose selection process is so poorly defined that no specific criterion can be identified with any certainty, let alone be connected to the disparate effect. employment procedures or testing mechanisms that operate as `built-in headwinds' for minority groups." U.S. 977, 996] The two-and-a-half years following the Inclusive Communities ruling have highlighted several key challenges that fair housing plaintiffs must overcome under that case. 87-1387; Griffin v. Carlin, 755 F.2d 1516, 1522-1525 (CA11 1985). Under Title VII, the parties covered include the following: All companies and labor unions employing over 15 employees, Employment agencies, State and local government, and Apprenticeship programs. , n. 31. The court also concluded that Watson had failed to show that these reasons were pretexts for racial discrimination. 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. (1977) (issue is whether "a company's business necessitates the adoption of particular leave policies"); Griggs v. Duke Power Co., The Supreme Court determined that disparate-impact claims can be brought under the Age Discrimination in Employment Act (ADEA), but it imposed significant limitations on those suits. It's tied to discriminatory practices that may hinder equal access. Cf. startxref
(1982) (written examination). 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." Ante, at 999. 422 liable on a disparate-impact theory with respect to underwriting and rating decisions . Our cases since Griggs make The Facts of the Case The Inclusive Communities Project, Inc. (ICP), a Texas-based nonprofit corporation that assists low-income families in obtaining affordable housing, brought a disparate-impact claim under the Fair Housing Act against the Texas Department of Housing and Community Affairs (Department). 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. U.S. 248, 252 In sum, the high standards of proof in disparate impact cases are sufficient in our view to avoid giving employers incentives to modify any normal and legitimate practices by introducing quotas or preferential treatment. (1976) (Title VII litigation "involves a more probing judicial review, and less deference to the seemingly reasonable acts of [employers] than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed"). 434 Bd. INTERPRETING THE CIVIL RIGHTS ACT OF 1964 In Griggs, for example, we examined "requirements [that] operate[d] to disqualify Negroes at a substantially higher rate than white applicants." U.S., at 254 (employment standards that "select applicants for hire in a significantly discriminatory pattern"); Beazer, 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. 253, as amended, 42 U.S.C. Other courts said that while evidence of disparate impact might be sufficient to establish a prima facie case, the defendants would be entitled to rebut that case by demonstrating, inter alia . 401 Ante, at 998. The following cases are disparate treatment examples in the categories of Age, Sex and Race Discrimination. App. 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. 430 . See generally id., at 429-436. See, e. g., Albemarle Paper Co. v. Moody, As a result, disparate-impact suits have become less successful over time. 2014), for this proposition, which is now Second Circuit law. ibid. [ 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. and who passed the company's general aptitude test, its selection system could nonetheless have been considered "subjective" if it also included brief interviews with the candidates. [ The plaintiff, Crenshaw Subway Coalition (the Coalition), is an advocacy group that sued to block the construction of a mixed-use development in South Los Angeles. A third decision, confirming that the Fair Housing Act prohibits not only policies that intend to perpetuate racial . U.S. 440, 446 Brief for the American Psychological Association as Amicus Curiae 2. See Burdine, supra, at 252, n. 5; see also United States Postal Service Bd. In Griggs itself, for example, the employer had a history of overt racial discrimination that predated the enactment of the Civil Rights Act of 1964. U.S. 977, 1009] ] Both concurrences agree that we should, for the first time, approve the use of disparate impact analysis in evaluating subjective selection practices. (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. Footnote 10 In January 1976, Watson was promoted to a position as teller in the Bank's drive-in facility. In Smith v. City of Jackson (2005), for example, the court held that when age is an issue in personnel actions, employers need to demonstrate not the existence of business necessities but only that disparate impacts were caused by a reasonable factor other than age, the less-demanding standard allowed by the ADEA. of Governors v. Aikens, supra, at 713, n. 1; McDonnell Douglas, Respondent warns, however, that "validating" subjective selection criteria in this way is impracticable. U.S., at 332 for the purpose of predicting ability to master a training program even if the test does not otherwise predict ability to perform on the job"). Congress expressly provided that Title VII not be read to require preferential treatment or numerical quotas. include such things as customers' preference for employees of a certain race. 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 Teamsters, supra, at 349, and n. 32. Congress has specifically provided that employers are not required to avoid "disparate impact" as such: We do not believe that disparate impact theory need have any chilling effect on legitimate business practices. 426 478 (discretionary promotion decision). %%EOF
This article documents the spillover effects of the politics of disparate impact in cases challenging new forms of vote denial under Section 2 of the Voting Rights Act. 471 Simply, it is the theory that an individual or. 433 Disparate Impact. Griggs v. Duke Power Co., U.S. 424, 432 U.S. 977, 998] -804 (1973), and Texas Dept. 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. U.S. 938 [487 xbbb`b``c
[487 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. 411 The requirement for disparate impact claims is the plaintiff "must at least set forth enough factual allegations to plausible support each of the basic elements of a disparate impact claim." The Circuit cites Adams v. City of Indianapolis, 742 F.3d 720 (7th Cir. Since the passage of Title VII of the Civil Rights Act of 1964, employers have been prohibited from engaging in two forms of discrimination: disparate treatment (e.g., intentional exclusion of a person because of their identity) and disparate impact (e.g., unintentional disadvantage of a protected class via a facially neutral procedure) [ 4 ]. U.S., at 578 U.S. 977, 985] It is an employer's obligation to persuade the reviewing court of this fact. Teamsters v. United States, Although the protected classes vary by statute, most federal civil rights laws consider race, color, religion, national origin, and sex to be protected characteristics, and some laws include disability status and other traits as we Disparate impact is the idea that a policy can have a discriminatory effect even if it wasn't created with an intent to discriminate. 87-1388, for blacks to have to count." However, civil rights advocates have been disappointed as federal courts have increasingly limited how and when plaintiffs may file disparate-impact claims. MAJORITY: Held: Disparate-impact claims are cognizable under the Fair Housing Act. 457 (1977). The criterion must directly relate to a prospective employee's ability to perform the job effectively. . Supreme Court recognizes disparate-impact claims under FHA - implications for property insurers . See Sheet Metal Workers v. EEOC, Furnco Construction Corp. v. Waters, [487 , n. 14. endstream
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(citation omitted; internal quotation marks omitted). 1979 to 2006). We granted certiorari to resolve the conflict. In a much-anticipated decision, the U.S. Supreme Court held in Texas Department of Housing and Community Affairs v. Inclusive Communities Project The plurality's prediction that an employer "will often find it easier" ante, at 999, to justify the use of subjective practices as a business necessity is difficult to analyze in the abstract. Texas Dept. See Griggs v. Duke Power Co., The District Court later decertified this broad class because it concluded, in light of the evidence presented at trial, that there was not a common question of law or fact uniting the groups of applicants and employees. 457 Furthermore, even if one assumed that any such discrimination can be adequately policed through disparate treatment analysis, the problem of subconscious stereotypes and prejudices would remain. 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. The court held that, under its precedent, a Title VII challenge to a discretionary or subjective promotion system can only be analyzed under the disparate treatment model. 401 We conclude, accordingly, that subjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases. U.S. 977, 1010] At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. See, e. g., Rivera v. Wichita Falls, 665 F.2d 531, 536, n. 7 (CA5 1982) (citing Casteneda [Castaneda] v. Partida, 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. 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. , quoting the Equal Employment Opportunity Commission's (EEOC's) Uniform Guidelines on Employee Selection Procedures, 29 CFR 1607.4(c) (1974) ("The message of these Guidelines is the same as that of the Griggs case - that discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be `predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job'"). 426 1 / 19. U.S. 977, 995] U.S. 792 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 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. (1988), cert. In the 1880 United States presidential election, a majority of eligible African-American voters cast a ballot in every Southern state except for . 0000006009 00000 n
(1988), cert. In certain cases, facially neutral employment practices that have significant adverse effects on protected groups have been held to violate the Act without proof App. Footnote 9 Petitioner Clara Watson, who is black, was hired by respondent Fort Worth Bank and Trust (the Bank) as a proof operator in August 1973. 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 Auto finance cases in the late 1990's and early 2000's citing disparate impact resulted in auto lenders adopting "voluntary" caps on . 433 , n. 5 (1981) (recognizing, in the context of articulating allocation of burdens applicable to disparate-treatment claims, that "the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes"); United States Postal Service Bd.
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