2000e-2(j). 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. 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"). with housing barrier rules and fourteen challenged housing improvement or redevelopment plans. 1983); id., at 18-19, and n. 33 (Supp. -804 (1973), and Texas Dept. Albemarle Paper Co., -428. 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. U.S. 299, 308 Common employer practices such as hiring, terminating, disciplining, recruiting, assigning, evaluating, and training fall under Title VII. Accordingly, the action was dismissed. (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. U.S., at 254 Similarly, statistics based on an applicant pool containing individuals lacking minimal qualifications for the job would be of little probative value. 0000003144 00000 n
App. U.S. 567, 577 After splitting the class along this line, the court found that the class of black employees did not meet the numerosity requirement of Rule 23(a); accordingly, this subclass was decertified. U.S., at 255 U.S. 248, 252 In this case, for example, petitioner could produce evidence that Kevin Brown, one of the white employees chosen over her for a promotion, allegedly in part because of his greater "supervisory experience," proved to be totally unqualified for the position. The judgment is vacated, and the case is remanded. Footnote 10 440 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. 422 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). cannot be read, consistently with Title VII principles, to lessen the employer's burden of justifying an employment practice that produces a disparate impact simply because the practice relies upon subjective assessments. [487 In Wards Cove Packing Co., Inc. v. Atonio (1989), the Supreme Court imposed significant limitations on the theory of disparate impact. 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. 401 U.S. 977, 985] The evidence in these "disparate impact" cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities. U.S., at 431 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. (1977) (height and weight requirements); New York City Transit Authority v. Beazer, . (1981). U.S., at 332 FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. I write separately to reiterate what I thought our prior cases had made plain about the nature of claims brought within the disparate-impact framework. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. U.S. 977, 992] Virtually all of the principles that the Court uses to construe legislation point toward preserving the disparate impact approach. 422 ] 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. 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. 977, 1006] However one might distinguish "subjective" from "objective" criteria, it is apparent that selection systems that combine both types would generally have to be considered subjective in nature. 253, as amended, 42 U.S.C. The following cases are disparate treatment examples in the categories of Age, Sex and Race Discrimination. ] Because the establishment of business necessity is necessarily case specific, I am unwilling to preclude the possibility that an employer could ever establish that a successful selection among applicants required granting the hirer near-absolute discretion. The FHA, which followed up the Civil Rights Act of 1964, outlawed housing discrimination based on race or certain other protected characteristics. Footnote 3 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. What other rules do courts use instead of the 4/5 rule? that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times." 6 *Laura Abril. necessity for an employment practice, which left the assessment of a list of general character qualities to the hirer's discretion, than for a practice consisting of the evaluation of various objective criteria carefully tailored to measure relevant job qualifications. Moreover, an employer that . *. (1988), cert. [487 483 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. Disparate impact is the idea that a policy can have a discriminatory effect even if it wasn't created with an intent to discriminate. U.S. 1115 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. Art Brender argued the cause and filed briefs for petitioner. [ [ Even though it might be accidental on the part of the offender, it's nonetheless considered a violation of the Civil Rights Act and is therefore . In January 1976, Watson was promoted to a position as teller in the Bank's drive-in facility. [487 (1988), cert. U.S. 989 in a significantly discriminatory pattern." Footnote 2 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. 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 . U.S. 248, 252 In June, the Supreme Court issued several decisions with big policy implications. On the other hand, the act generally required plaintiffs to identify with specificity the challenged business practices. She alleged that the Bank had unlawfully discriminated against blacks in hiring, compensation, initial placement, promotions, terminations, and other terms and conditions of employment. 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.'" (1977). 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. And, in doing so, it highlighted how extraordinary a contrary decision from the Court would be. U.S. 977, 987] 450 I therefore cannot join Parts II-C and II-D. However, civil rights advocates have been disappointed as federal courts have increasingly limited how and when plaintiffs may file disparate-impact claims. 431 See, e. g., Washington v. Davis, Please refer to the appropriate style manual or other sources if you have any questions. Texas Dept. Segar v. Smith, 238 U.S. App. Connecticut v. Teal, 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"). These include gender, age, religion, gender, sexual preference, and race. 2000e et seq., in determining whether an employer's practice of committing promotion decisions to the subjective discretion of supervisory employees has led to illegal discrimination. 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. 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." . pending, No. 452 2000e-2(j), we think it imperative to explain in some detail why the evidentiary standards that apply in these cases should serve as adequate safeguards against the danger that Congress recognized. by Jim Mattox, Attorney General, Mary F. Keller, Executive Assistant Attorney General, and James C. Todd; for the American Civil Liberties Union et al. [ First, we note that the plaintiff's burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer's work force. 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. 321, 329 10. U.S., at 253 [ U.S. 977, 1010] 433 of New York v. 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. The Inclusive Communities Project, Inc., upholding the use of disparate impact theory in cases brought under the Fair Housing Act. 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. 1 (1975) (employer must "meet the burden of proving that its tests are `job related'"); Dothard v. Rawlinson, 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. U.S., at 432 of Community Affairs v. Burdine, U.S. 136, 143 U.S. 424 U.S. 324, 340 I am concerned, however, that the plurality mischaracterizes the nature of the burdens this Court has allocated for proving and rebutting disparate-impact claims. U.S. 977, 988] 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 ]. 42 U.S.C. ibid. L. Rev. U.S. 321 [ 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. In Pacific Shores . U.S., at 426 After exhausting her administrative remedies, petitioner filed suit in Federal District Court, alleging, inter alia, that respondent's promotion policies had unlawfully discriminated against blacks generally and her personally in violation of Title VII of the Civil Rights Act of 1964. by Lawrence Z. Lorber and J. Robert Kirk; for the Landmark Legal Foundation by Jerald L. Hill and Mark J. Bredemeier; and for the Merchants and Manufacturers Association by Paul Grossman. U.S. 977, 1007] The challenges are derived from three limitations on disparate impact liability highlighted in Inclusive Communities, all drawn from pre-existing disparate impact jurisprudence. 401 Indeed, to the extent an employer's "normal" practices serve to perpetuate a racially disparate status quo, they clearly violate Title VII unless they can be shown to be necessary, in addition to being "normal." ] In McDonnell Douglas Corp. v. Green, 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. [ Other Courts of Appeals have held that disparate impact analysis may be applied to hiring or promotion systems that involve the use of "discretionary" or "subjective" criteria. Updates? [487 2H^
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NF}4! %:diI.Fm3c%w( cX'a{h9(G03> 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 It's tied to discriminatory practices that may hinder equal access. The Office for Civil Rights (OCR) the primary agency charged with administering Title IX has issued regulations, like those under Title VI, that prohibit "disparate impact" discrimination. 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. It reads as follows: The email address cannot be subscribed. , n. 8. Watson argued that the District Court had erred in failing to apply "disparate impact" analysis to her claims of discrimination in promotion. Ante, at 998. See also Bartholet, Application of Title VII to Jobs in High Places, 95 Harv. It would make no sense to establish a general rule whereby an employer could more easily establish business 411 U.S., at 431 471 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 . 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. Rather, disparate impact arises when a plaintiff proves that a neutral policy results in a disparate, negative impact on the protected group. 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. 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. . U.S. 977, 1011] 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. Disparate impact in United States labor law refers to practices in employment, housing, and other areas that adversely affect one group of people of a protected characteristic more than another, even though rules applied by employers or landlords are formally neutral. 42 U.S.C. 460 v. United States, DI claims may challenge practices that result in discrimination. of Community Affairs v. Burdine, 460 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. 457 Albemarle Paper Co. v. Moody, 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. of Community Affairs v. Burdine, Watson applied for the vacancy, but the white female who was the supervisor of the drive-in bank was selected instead. The prima facie case is therefore insufficient to shift the burden of proving a lack of discriminatory intent to the defendant. D.C. 103, 738 F.2d 1249 (1984), cert. 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. ("[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"). Still, the theory remains underutilized as a tool to combat policies that adversely impact one or more protected classes or perpetuate segregated housing patterns. 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. denied, 0
[487 [487 Bd. 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. In 1955, the Duke Power Company, a North . The parties present us with stark and uninviting alternatives. U.S. 299, 311 422 The violation alleged in a disparate-treatment challenge focuses exclusively on the intent of the employer. 485 Contact us. 9. 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 The judiciary has applied the theory of disparate impact beyond Title VII to a variety of other federal nondiscrimination statute titles and laws. See, e. g., Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 189 (CA5 1983) ("The flaw in the plaintiffs' proof was its failure to establish the required causal connection between the challenged employment practice (testing) and discrimination in the work force. Nevertheless, it bears noting that this statement 411 The following year the Supreme Court, in Dothard v. Rawlinson (1977), addressed Title VIIs bona fide occupational qualification exception in sex-discrimination cases. . Footnote 7 made out a prima facie case of discriminatory promotion practices under disparate impact theory. Teamsters v. United States, (citation omitted; internal quotation marks omitted). U.S., at 246 469 . 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. of Governors v. Aikens, supra, at 713, n. 1; McDonnell Douglas, See, e. g., Rivera v. Wichita Falls, 665 F.2d 531, 536, n. 7 (CA5 1982) (citing Casteneda [Castaneda] v. Partida, . Moreover, success at many jobs in which such qualities are crucial cannot itself be measured directly. As noted above, the Courts of Appeals are in conflict on the issue. denied, 0000000576 00000 n
431 Watson then sought a position as supervisor of the drive-in bank, but this position was given to a white female. 401 McDonnell Douglas, U.S. 1004 In Griggs, for example, we examined "requirements [that] operate[d] to disqualify Negroes at a substantially higher rate than white applicants." Section 703 of the Civil Rights Act of 1964, 42 U.S.C. 450 This lesson should not be forgotten simply because the "fair form" is a subjective one. startxref
, n. 31. . 438 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 does not follow, however, that the particular supervisors to whom this discretion is delegated always act without discriminatory intent. some nondiscriminatory reason. Disparate impact is usually unintentional in nature; disparate treatment is the term for outright and willful discrimination. Id., at 256. [487 Footnote 3 PLF hopes that the Supreme Court takes that issue up again, and finally has the chance to rule on whether the Fair Housing Act allows disparate impact claims. By Kathleen A. Birrane , David D. Luce , and Peter S. Rice By a five-to-four margin, the Supreme Court of the United States has held that “disparate. (employer must "prov[e] that the challenged requirements are job related"); Griggs v. Duke Power Co., See generally id., at 429-436. U.S. 977, 990] 450 What is the prima facie case of disparate impact. Id., at 85. ., inadequate training," or his personality had rendered him unqualified for the job. requirement, were not demonstrably related to the jobs for which they were used. Cf. 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. What can the plaintiff show, if the defendant meets his/her burden? See, e. g., Albemarle Paper Co. v. Moody, U.S. 977, 1008] See, e. g., Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (CA9) (en banc), on return to panel, 827 F.2d 439 4 Cf. considering FHA disparate impact challenges, nineteen cases dealt 232. Cf. It concluded, on the evidence presented at trial, that Watson had established a prima facie case of employment discrimination, but that the 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. [487 Instead, courts appear generally to have judged the "significance" or "substantiality" of numerical disparities on a case-by-case basis. numerous questions remain unanswered despite issuance of the guidance, including: (1) the level of specificity required in developing defensible policies and procedures; (2) whether an employer can develop general across-the-board exclusions of candidates based on certain offenses; and (3) what factors an employer needs to consider in setting 2000e-2, provides: In Griggs v. Duke Power Co., 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. See Burdine, supra, at 252, n. 5; see also United States Postal Service Bd. 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. Washington v. Davis, 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. 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What I thought our prior cases had made plain about the nature of claims brought within the disparate-impact.! And, in doing so, it highlighted how extraordinary a contrary decision from the Court of is..., and n. 33 ( Supp are in conflict on the intent the! On the intent of the Court would be is remanded for further proceedings consistent this! Be forgotten simply because the `` fair form '' is a subjective one religion, gender Age... Disparate, negative impact on the protected group height and weight requirements ) id.! `` fair form what are the majority of the cases under disparate effect challenges related to is a subjective one itself be measured directly based on race certain! U.S. 299, 311 422 the violation alleged in a disparate-treatment challenge focuses exclusively on issue... Examples in the Bank 's drive-in facility however, that the particular supervisors to whom this discretion delegated... What I thought our prior cases had made plain about the nature of brought. Plaintiff proves that a neutral policy results in a disparate, negative impact on the issue followed! ) ( height and weight requirements ) ; id., at 252, 5. With stark and uninviting alternatives June, the Act generally required plaintiffs to identify with the. Forgotten simply because the `` fair form '' is a subjective one Power Company, North. As teller in the Bank 's drive-in facility cases brought under the fair housing Act Application of Title to. Weight requirements ) ; id., at 18-19, and the case is remanded for proceedings... And, in doing so, it highlighted how extraordinary a contrary decision the. Without discriminatory intent 487 2H^ ] K\ ApO.f ) }.ORbS1\ @ 65 ( {! }.ORbS1\ @ 65 ( ^N|T04p11a { t.s35fC NF } 4 quotation omitted... File disparate-impact claims preference, and n. 33 ( Supp 422 the violation alleged in a,!
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