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In the Introduction to the Chapter, the authors raise two principal questions that seek to reveal the distinctive significance of Disparate Impact theory:

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Presentation on theme: "In the Introduction to the Chapter, the authors raise two principal questions that seek to reveal the distinctive significance of Disparate Impact theory:"— Presentation transcript:

1 In the Introduction to the Chapter, the authors raise two principal questions that seek to reveal the distinctive significance of Disparate Impact theory: What concept of equality is embraced by the majority (and dissenting opinions) in the cases interpreting disparate impact theory? Recall from Chapter 1 that one theory of equality is equal treatment. This theory views Title VII as intending that race, gender, color, national origin or religion should not be a factor in the decision-making process; the second theoretical conception of Title VII is equal opportunity, i.e., that formal equality is meaningless if pervasive inequality is a reality in hiring, opportunity for advancement, or the terms and conditions of work. The second conception of equality is concerned with the continuing impact of historical discrimination. The latter theory finds support in 42 U.S.C. §2000e-2(a)(2). Does Griggs v. Duke Power Company, as a case of first impression, provide a sufficient theoretical statement of Disparate Impact theory?

2 The removal of barriers to employment which have historically favored white employees (a Supreme Court case of first impression concerning the meaning of Title VII); In Griggs, Black employees, using the vehicle of a class action, challenge the Power Companys use of a high school diploma requirement and a nationally accepted high school equivalency test as a precondition to employment in any job other than the companys lowest laborer jobs, or transfer from coal handling jobs to any inside department (Operations, Maintenance or Laboratory jobs). The Power Company instituted such requirements immediately following the enactment of Title VII of the Civil Rights Act. Neither the education or test requirements were intended to, nor did they in fact measure the ability to perform the jobs in question. The District Court found that the Power Company had, prior to the enactment of Title VII, intentionally discriminated in hiring, transfer, and promotion on the basis of race. The Court of Appeals held that, in the absence of discriminatory motive, an employers use of facially neutral educational requirements and general intelligence tests is permitted, without qualification, by Title VII. The Supreme Court reversed, holding that when such requirements significantly disqualify a disproportionate number of Black applicants, they violate Title VII.

3 The legislative intent of Title VII and the requirement of job- relatedness Noting the admission of the Power Company that the education and test requirements disqualified a disproportionate number of black employees, the Court explained that while such requirements are not per se invalid, intelligence must have a means of articulation so as to manifest itself in a testing process that is used to determine qualifications for employment. On this issue, the Court found that, at the time of this case, and long prior, black citizens had received inferior education in racially segregated schools in North Carolina (noting the prohibition of literacy tests as a precondition to voter registration. See e.g. United States v. Louisiana, 225 U.S. 353 (E.D. La. 1963), affirmed, 380 U.S. 145 (1965). Alluding to Aesops fables, the court held that the applicants condition must be viewed in relation to the allegedly equal opportunity to be hired or transferred, and that opportunity must be available to all applicants who can perform the requirements of the job. Viewed in this context, the educational requirements and intelligence tests were introduced by the employer with no study of their relationship to successful job performance. In fact, the Court observed, the record in the case demonstrated that current white employees who lacked the high school diploma and who had not completed the tests performed satisfactorily in the jobs sought by black applicants and employees. This finding is fatal to the employers claim under disparate impact theory. In determining the presence or absence of racial discrimination in the selection process, the point of reference of disparate impact theory is not the employers racial motive, but the employers use of artificial qualifications for a job, which exclude significant numbers of protected class employees. The focus is on consequences of job requirements, not the employers motive. This aspect of Title VII is concerned with equal opportunity.

4 Note the Courts observation that, at the time of the case, the EEOC had issued Guidelines specifying that employers could use only job-related tests, and that this guidance by the enforcement agency responsible for Title VII was entitled to great deference. And note the Courts examination of legislative history, concluding that Congress was explicit in its intention that the language of Title VII would not require employers to hire applicants who were unqualified, when measured by job-related qualifications, simply because they were members of a protected class specified in Title VII. This Congressional dialogue led to the adoption of the testing provision codified in § 703(h) of the Act. Thus EEOCs interpretive guidance is consistent with legislative intent. Nothing in Title VII precludes the use of tests as a measurement for selection, so long as such tests legitimately measure job performance. This conclusion in fact is axiomatic with Title VIIs purpose – to make race (color, sex, religion, or national origin) irrelevant in themselves as qualifications for a job. The Court did not explicitly rely on the language of §703(a)(2) to support Disparate Impact theory until its decision in Connecticut v. Teal, eleven years after Griggs. Note the language of (a)(2): The word discriminate is not used; instead the section speaks of limitations and classifications that would deprive individuals of employment opportunities.

5 Comparing Disparate Impact and Disparate Treatment theory regarding the goals of Title VII Defining discrimination in terms of consequences rather than motive applies Title VII to preclude employment practices that have a disproportionate negative impact on protected groups unless the employer can show that the employment practice is job related and justified by business necessity. Thus Disparate Impact theory seeks to abate artificial institutional barriers to equal employment opportunities for minorities and women, i.e., to keep institutional choices connected to job-relatedness and business necessity.

6 A Disparate Impact plaintiff must allege that an identified employment practice selects candidates for hire or promotion in a (here) racial pattern significantly different from the general pool of applicants (by a statistical showing that the observed number of hires or promotions is significantly different from that to be expected if neutral selection criteria were used); Once this is established, the employer must show that the practice is job-related and business-necessary; If the employer meets this requirement, the plaintiff must show alternative selection devices that would remove the undesirable (racial) effect consistent with the employers legitimate interest in successful performance of the job in question; The goal of this analytical approach is to create the expectation that an employer will insure validation of its employment practices, including tests, by either: Content-based validation (replicating the content of the job, e.g., asking an applicant for a word-processing job to complete an exemplary word processing exercise); or Criterion-based validation (presenting a statistical correlation between the selection procedure and job performance, e.g., having current employees take a test and then comparing the test results with their current performance ratings).

7 Eleven years after Griggs, the Court rejected an employers assertion that it should not be liable to protected class employees who were rejected for promotion, if the overall result of the promotion process produced an appropriate racial balance. The case arose from the State of Connecticuts use of a written examination as a part of its promotion process (in the States Department of Income Maintenance). Of the 329 candidates, 54% of the self-identified 48 black applicants taking the test passed - approximately 68% of the passing rate for the 259 white applicants. The black employees who failed the test filed a disparate impact claim, and while the case was pending in federal court, the employer made promotions from an eligibility list generated by the examination (examining past work performance, seniority and supervisory recommendations); the employer also then considered its concern for promoting a significant number of minority employees. As a result of this approach, 23% of eligible black employees were promoted as compared to 13.5% of eligible white employees. The employer alleged that this result should be a per se defense to plaintiffs allegation that the test in question disproportionately disqualified black employees and was not job- related.

8 The four justice majority reasoned that the basis of the States defense ignores the fact that Title VII guarantees individual protected class employees the right to compete equally with white workers on the basis of job-related criteria; this can be done only by eliminating the use of artificial barriers that disproportionately disqualify members of a protected class (here black employees); This right belongs to every employee who seeks to be hired or promoted, i.e., each black employee who was disqualified by the test, in spite of the States promotion of other black employees from the pool that remained, based on its desire to achieve a satisfactory representation of minority employees in supervisory ranks. In this sense Disparate Impact theory recognizes the subtle practices and devices that foster racially stratified jobs to the disadvantage of minority employees.

9 Four justices dissented, arguing that, although Title VII was intended to protect individuals and not groups, nevertheless in Disparate Impact cases, unlike Disparate Treatment cases, the plaintiffs proof of discrimination is by inference, and s/he is not at the center of the case. The dissent cautioned that the majoritys holding could encourage employers to either eliminate tests altogether or rely on expensive, job-related validation that might in the end be disapproved (Is this an argument with a logical fallacy, or an argument that employers should not have to invest in the cost of test or criteria validation?)

10 Watson, a bank teller (with seven years experience) at Fort Worth Bank, applied for four higher level positions for which she deemed herself qualified, but lost out to white co-workers on each occasion. Her case raised the question whether Disparate Impact analysis can be applied, when the employer justifies its selection process by relying on the subjective judgment of supervisors, rather than more formal criteria in making promotion decisions. A unanimous Court held that Disparate Impact analysis does apply, and is not overcome by the mere allegation that the employer relies on supervisory discretion in making promotions. The Court held without dissent that, while reliance on supervisory discretion is not per se discriminatory, such supervisory discretion may be influenced by subconscious stereotypes and prejudices that do not rise to the level of intentional discrimination. If an employers system of undisciplined discretion has precisely the same effect as a system pervaded by intentional discrimination, [Title VIIs proscriptions should apply] (emphasis supplied).

11 Noting the employers argument that the difficulty of validating subjective criteria would make it impossible to defend claims of discrimination, and/or would lead employers to adopt furtive racial quotas – the Court observed that Title VII requires no employer to grant preferential treatment to any protected class individual or group because of past discrimination (Citing 42 U.S.C. § 2000e -2(j) and Albermarle Paper Company v. Moody, 422 U.S. 405 (1975). How the analytical approach to subjective criteria cases satisfies employer concerns: First, in a case where a plaintiff challenges a subjective decision- making process, s/he must identify the specific employment practice that is being challenged, i.e., that is responsible for the statistical disparities that allegedly reveal disparate impact. Second, the plaintiff must present statistical evidence sufficient to show that the challenged practice has resulted in the disproportionate exclusion of applicants or candidates in the protected group, i.e., an inference of causation. Finally, when the employer comes forward with evidence that its practices are legitimate, the plaintiff must show that other selection devices which do not have the undesirable racial result would serve the employers interests.

12 In 1991, Congress codified Disparate Impact theory in 42 U.S.C. § 2000e -2(k)(Sec. 703(k)(1)(A)-(C), and specifically stated the analysis to be applied in Disparate Impact cases: The Court re-affirmed Griggs requirement that practices which have a disparate impact on members of a protected class must be shown to be job-related for the position in question and consistent with business necessity. The plaintiffs bear the burden of this initial showing, and must do so by demonstrating: (i) that either a specific practice causes a disparate impact, or that a process that cannot be separated into specific components for analysis has a statistically significant negative impact on members of a protected class and is not job-related and consistent with business necessity, or (ii) that the plaintiffs have suggested an alternative practice that avoids the negative result with respect to the protected class and that the employer has refused to adopt that alternative. Recall that the 1991 Civil Rights Act also adopts new provisions in Disparate Treatment cases, including a provision for jury trials, as well as compensatory and in some cases punitive damages where intentional discrimination is proven. The case book authors illustrate the post-1991 CRA jurisprudence in two cases, Lanning v. Septa, a Third Circuit case, and Ricci v. DeStefano, a Supreme Court case.

13 In Lanning I, the Third Circuit Court of Appeals held that, under the 1991 CRA, a discriminatory cut-off score on an entry level employment exam must be shown to measure the minimum qualifications necessary for successful performance of the job in question. The employer, a regional mass transit authority, admitted that its adoption of a physical fitness test had a disparate impact on women applicants for transit police positions, but defended its use of the test based on the expert opinion of the designer of the test, Dr. Paul Davis. Dr. Davis admitted that the tests requirement of a 1.5 mile run in under 12 minutes might lack content validity, but asserted that it was an accurate measure of the aerobic capacity necessary to perform the job (an apparent construct validity argument (see note 7, page 227). The case thus permitted a direct test of Disparate Impact theory under the 1991 CRA – and particularly the job-related and business necessary aspect of the analysis. The Court held that the business necessity requirement reaffirmed by the 1991 CRA required that the minimum cut-off imposed by Dr. Davis test must measure the minimum requirement for successful performance of the job of transit police officer. The court rejected the argument that the required test must merely bear some legitimate relationship to the job in question (a vestige of the Wards Cove case that was rejected by Congress in the 1991 CRA). On remand, the trial court approved the test, and that ruling was again appealed.

14 On appeal, the Third Circuit affirmed the approval of the transit authoritys use of the test developed by Dr. Davis, observing that the transit authority produced sufficient evidence that the test measured the minimum requirements for both the pre-hire training of transit officers, and the job itself. The court thus held that the admitted disproportionate rejection of female applicants based on their performance on the test did not violate Title VII. In an opinion that clearly deferred to employers where the jobs at issue involved the protection of public safety, the court held that transit police were infrequently but necessarily required to run down persons fleeing the scene of a crime in order to effectuate arrest. The court did recognize that Davis test research was not undisputed, but found evidence of a correlation between successful run time and a success rate on the job standards (slightly confusing language). Finally, the court found that women who trained before applying were able to pass the test – a factor that supported the transit authoritys concern for the commitment of its officers to physical fitness. Judge McKee, writing in dissent, noted that the test in question was administered when a person first applied for a position as a transit police officer, not when that applicant completed police academy training and actually started the job. Thus the transit authority took no action to retest or otherwise determine whether a previously qualified male officer could still pass the test – and incumbent officers are not required to do so. Judge McKee also questioned Dr. Davis decision to determine his own cut-off score despite the recommendations of 20 experienced officers.

15 In 2009, in a 5-4 decision in Ricci v. DeStefano, the Supreme Court strictly limited an employers voluntary efforts to act preemptively to remedy the probable disparate impact of its established selection procedures. Ricci is a reverse discrimination lawsuit challenging the decision of the City of New Haven to disregard the results of test scores that disproportionately excluded minority applicants for promotion within its firefighter ranks. A bare majority of the Supreme Court held that the Citys decision not to rely on the test results, because to do so could lead to liability for disparate impact liability, was a race- conscious decision in violation of Title VII, unless the City could demonstrate the probability that the test would be found to be statistically discriminatory and not job- related and business necessary. The fact context: The Citys tests for promotion to lieutenant and captain positions were developed by IOS, a test consultant. The content validation process conducted by IOS is explicitly described in the Courts opinion at page 269 of the case book. The administration of the tests, and the requirements of the Citys merit system resulted in the initial selection of 10 candidates, all white, for lieutenant vacancies and 9 whites and 2 hispanic candidates for captain vacancies. No black candidates were selected.

16 The Citys Civil Service Board met to consider the results of the test. It considered the advice of its Department of Human Resources and its General Counsel that the test had a significant disparate impact on minority candidates; the conflicting opinions of candidates who spoke at the meeting both for and against the use of the test results; and the opinion of 3 experts in the field of test development or race and culture. In the end it decided not to rely on the tests until they could be satisfactorily validated. The 5 member majority of the Court decided the case on the fundamental premise that the Citys action to delay use of the tests because of its concern for disparate impact violates the disparate treatment provisions of Title VII, unless the likelihood of disparate impact could be proven – beyond proving the statistical disparity based on race per se. The Court did explain that the City could act where it knew in fact that its test results violated Title VIIs disparate impact provisions, and that an employer is not required to wait until it has been found liable under Title VII. However, the majority held that a good faith belief regarding the validity of its reliance on the tests is insufficient to justify its decision. Citing City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)(another divided opinion), the Court held that the Citys defense of its decision must be based on a strong basis in evidence that its remedial efforts were necessary to avoid disparate impact liability.

17 The majority – indeed the plaintiffs – admitted that the statistical disparities in pass rates fell well below the 80% threshold that triggers the disparate impact provisions of Title VII under EEOC guidance (See 29 C.F.R. § 1607.4 (2008). However, the majority found that this statistical disparity alone falls short of the strong showing required for a finding of liability under Title VIIs disparate impact language. The majority stated in conclusory terms that there is no question that the examinations were job-related and consistent with business necessity. The majority also found that the City presented no evidence of an equally valid, less discriminatory testing alternative [despite such suggestions by an industrial/organizational psychologist retained by the City to evaluate the apportionment of written & oral scores as contrasted with the use of assessment centers where content-based validation could be conducted (a method of validation used in 2/3 of cities in this context). In fact, the majority reviews the experts testimony and then simply says that it is insufficient, standing alone]. Justices Ginsburg, Breyer, Stevens and Souter emphasize two factors: (1) That historical deliberate racial discrimination in the field of firefighting is beyond doubt; and (2) That the majority unjustifiably ignored substantial evidence in the record of multiple flaws in the tests used by the City. The dissenting justices also directly challenge the majoritys assertion of the potential conflict between Title VIIs disparate treatment and disparate impact provisions, and emphasize that the twin provisions seek the elimination of workplace discrimination and the promotion of equal employment opportunity., including through voluntary compliance.

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