Supreme Court Cases The Supreme Court first described the disparate impact theory in 1971, in Griggs v. The challenges are derived from three limitations on disparate impact liability highlighted in Inclusive Communities, all drawn from pre-existing disparate impact jurisprudence. If an employment practice which operates to exclude [members of a protected group] cannot be shown to be related to job performance, the practice is prohibited. The court found that the two requirements imposed by the company were not related to job performance, noting that many white employees who were not high-school graduates had been performing well in the higher-paying departments. 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. 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. 977, 1008] Bank had met its rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of the challenged promotion decisions. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. 422 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. 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." Click the card to flip . In a much-anticipated decision, the U.S. Supreme Court held in Texas Department of Housing and Community Affairs v. Inclusive Communities Project v. United States, -432. U.S., at 431 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. See McDonnell Douglas Corp. v. Green, their usefulness depends on all of the surrounding facts and circumstances." If we announced a rule that allowed employers so easily to insulate themselves from liability under Griggs, disparate impact analysis might effectively be abolished. 253, as amended, 42 U.S.C. (1982). Another testified that he could not attribute specific weight to any particular factors considered in his promotion decisions because "fifty or a hundred things" might enter into such decisions. U.S. 977, 984] is a term that refers to certain situations in which an employer may legally require that employees be of a certain sex, religion, or age. . 401 422 U.S. 938 Title VIII of the Civil Rights Act of 1968, as amended ("Fair Housing Act" or "Act"), prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities because of race, color, religion, sex, disability, familial status, or national origin. Teamsters, supra, at 349, and n. 32. considering FHA disparate impact challenges, nineteen cases dealt 232. 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 433 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. 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"). 401 . U.S. 977, 988] 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. 411 U.S. 977, 1006] 431 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. The judiciary has applied the theory of disparate impact beyond Title VII to a variety of other federal nondiscrimination statute titles and laws. U.S., at 331 Such conduct had apparently ceased thereafter, but the employer continued to follow employment policies that had "a markedly disproportionate" adverse effect on blacks. U.S., at 432 The Court's decision is, needless to say, disappointing. [487 Albemarle Paper Co. v. Moody, [487 3 ante, at 994 (plaintiff is responsible "for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities"). Id., at 135. <]>>
471 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 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." [ 2000e-2(a)(2). By: Eli Scher-Zagier . Six months after Brown was promoted, his performance was evaluated as only "close to being `competent.'" A plaintiff proves a disparate impact case by firstly: establishing statistically that the rule disproportionately restricts employment opportunities for a protected class. In attempting to mimic the allocation of burdens the Court has established in the very different context of individual disparate-treatment claims, the plurality turns a blind eye to the crucial distinctions between the two forms of claims. 401 450 (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. In Wards Cove Packing Co., Inc. v. Atonio (1989), the Supreme Court imposed significant limitations on the theory of disparate impact. 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. The plurality need not have reached its discussion of burden allocation and evidentiary standards to resolve the question presented. Footnote 10 Yet in Alexander v. Sandoval (2001), the Supreme Court closed the door on disparate-impact suits brought by individuals under Title VI, ruling that although the agencys regulations were valid, no private right of action existed for individuals to enforce them. Corp., 750 F.2d 867, 871 (CA11 1985) (subjective assessments involving white supervisors provide "ready mechanism" for racial discrimination). 199-202. See, e. g., Fudge v. Providence Fire Dept., 766 F.2d 650, 656-659 (CA1 1985). . See Sheet Metal Workers v. EEOC, 1979 to 2006). On Watson's motion under Federal Rule of Civil Procedure 23, the District Court certified a class consisting of "blacks who applied to or were employed by [respondent] on or after October 21, 1979 or who may submit employment applications to [respondent] in the future." [487 Because Watson had proceeded zealously on behalf of the job applicants, however, the court went on to address the merits of their claims. We express no opinion as to the other rulings of the Court of Appeals. U.S., at 253 ] The American Psychological Association, co-author of Standards for Educational and Psychological Testing (1985), which is relied upon by the EEOC in its Uniform Guidelines, has submitted a brief as amicus curiae explaining that subjective-assessment devices are, in fact, amenable to the same "psychometric scrutiny" as more objective screening devices, such as written tests. As noted above, the Courts of Appeals are in conflict on the issue. U.S. 977, 987] 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. U.S. 977, 1010] U.S. 977, 995] that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times." [487 The Griggs Court found that these policies, which involved the use of general aptitude tests and a high school diploma professional services or personal counseling. U.S., at 331 The Bank, which has about 80 employees, had not developed precise and formal criteria for evaluating candidates for the positions for which Watson unsuccessfully applied. See also Zahorik v. Cornell University, 729 F.2d 85, 96 (CA2 1984) ("[The] criteria [used by a university to award tenure], however difficult to apply and however much disagreement they generate in particular cases, are job related. Id., at 256. We are also persuaded that disparate impact analysis is in principle no less applicable to subjective employment criteria than to objective or standardized tests. [487 The parties present us with stark and uninviting alternatives. 7 For an employee to claim disparate treatment, he or she must show they were treated differently based on their protected traits. 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. 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. In order to avoid unfair prejudice to members of the class of black job applicants, however, the Court of Appeals vacated the portion of the judgment affecting them and remanded with instructions to dismiss those claims without prejudice. See Hazelwood School Dist. U.S., at 432 (1981). of Community Affairs v. Burdine, Footnote 3 (1977) (height and weight requirements); New York City Transit Authority v. Beazer, (1986) (O'CONNOR, J., concurring in part and dissenting in part). 485 of Governors v. Aikens, U.S., at 433 [ See, e. g., Albemarle Paper Co. v. Moody, The court also concluded that Watson was not an adequate representative of the applicant class because her promotion claims were not typical of the claims of the members of that group. 457 If petitioner can successfully establish that respondent's hiring practice disfavored black applicants to a significant extent, the bald assertion that a purely discretionary selection process allowed respondent to discover the best people for the job, without any further evidentiary support, would not be enough to prove job-relatedness. 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"). of Governors v. Aikens, supra, at 713, n. 1; McDonnell Douglas, U.S. 977, 997] 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." Other kinds of deficiencies in facially plausible statistical evidence may emerge from the facts of particular cases. [ 433 -428. 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. Our cases since Griggs make denied, 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 I agree that disparate-impact analysis may be applied to claims of discrimination caused by subjective or discretionary selection processes, and I therefore join Parts I, II-A, II-B, and III of the Court's opinion. 438 U.S., at 255 401 Corrections? 793, 805-811 (1978), and it has not provided more than a rule of thumb In the 1880 United States presidential election, a majority of eligible African-American voters cast a ballot in every Southern state except for . 0000000851 00000 n
Statistical evidence is crucial throughout disparate impact's three-stage analysis: during (1) the plaintiff's prima facie demonstration of a policy's disparate impact; (2) the defendant's job-related business necessity defense of the discriminatory policy; and (3) the plaintiff's demonstration of an alternative policy without the same discriminatory impact. , and n. 13 (hiring and promotion practices can be validated in "any one of several ways"). 113. Omissions? Griggs teaches that employment practices "fair in form, but discriminatory in operation," U.S. 1115 include such things as customers' preference for employees of a certain race. [1] Unfortunately, millions of Americans are denied jobs that they qualify for due to information discovered from a . [487 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. 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. endstream
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U.S., at 430 hiring methods failed in fact to screen for the qualities identified as central to successful job performance. 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." The plurality suggests: "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.'" 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. Footnote * 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. U.S. 977, 1009] , n. 14. In evaluating claims that discretionary employment practices are insufficiently related to legitimate business purposes, it must be borne in mind that "[c]ourts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it." Virtually all of the principles that the Court uses to construe legislation point toward preserving the disparate impact approach. (1988), cert. The disparate impact theory of liability is well established as a cognizable theory of liability in fair housing cases. 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. Id., at 85. some courts look at the applications, labor market stats, actual v. anticipated results, and the regression analysis. 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. 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. Art Brender argued the cause and filed briefs for petitioner. 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 . 2H^
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NF}4! %:diI.Fm3c%w( cX'a{h9(G03> I am concerned, however, that the plurality mischaracterizes the nature of the burdens this Court has allocated for proving and rebutting disparate-impact claims. Definition. U.S. 792, 802 For the second time in two years, the Supreme Court is poised to review a case that challenges whether the concept of "disparate impact" can be used to enforce the 1968 Fair Housing Act. (1977) ("[P]roper comparison was between the racial composition of [the employer's] teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market") (footnote omitted). Watson applied for the vacancy, but the white female who was the supervisor of the drive-in bank was selected instead. The theory of disparate impact arose from the Supreme Courts landmark decision in Griggs v. Duke Power Co. (1971), a case presenting a challenge to a power companys requirement that employees pass an intelligence test and obtain a high-school diploma to transfer out of its lowest-paying department. , n. 14; Teamsters, supra, at 335-336, n. 15. 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 . 422 In a disappointing 5-4 decision written by Justice Kennedy, the Supreme Court held today that the Federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968, encompasses claims for disparate impact. 426 Cf. U.S. 977, 998] 253, as amended, 42 U.S.C. that the employer adopted those practices with a discriminatory intent. Unless it is proved that an employer intended to disfavor the plaintiff because of his membership in a protected class, a disparate-treatment claim fails. 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. . 401 Antidiscrimination statutes, including Title VI and Title IX, can be enforced administratively when federal agencies threaten to deny federal funds to institutions for noncompliance. 431 The question we granted certiorari to decide, though extremely important, is also extremely narrow. The following cases are disparate treatment examples in the categories of Age, Sex and Race Discrimination. We agree that the inevitable focus on statistics in disparate impact cases could put undue pressure on employers to adopt inappropriate prophylactic measures. [ Disability laws also prohibit disparate impacts. [487 Learn more about FindLaws newsletters, including our terms of use and privacy policy. . a system pervaded by impermissible intentional discrimination, it is difficult to see why Title VII's proscription against discriminatory actions should not apply. An employee subjected to disparate treatment is being discriminated against intentionally. Teamsters v. United States, of Community Affairs v. Burdine, (1982) (written examination). (1981). It is self-evident that many jobs, for example those involving managerial responsibilities, require personal qualities that have never been considered amenable to standardized testing. by Jim Mattox, Attorney General, Mary F. Keller, Executive Assistant Attorney General, and James C. Todd; for the American Civil Liberties Union et al. See Dothard v. Rawlinson, See ante, at 994-997. 87-1387; Griffin v. Carlin, 755 F.2d 1516, 1522-1525 (CA11 1985). . [ , such a formulation should not be interpreted as implying that the ultimate burden of proof can be shifted to the defendant. U.S. 567, 577 U.S. 1109 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. 87-1387; Miles v. M.N.C. Footnote 9 In a 5-4 decision on Thursday, the court ruled that a law signed by President Lyndon Johnson in 1968 aimed at preventing discrimination in buying, renting, and financing homes applies even when the. It reads as follows: The email address cannot be subscribed. U.S. 229, 253 U.S., at 431 0000002652 00000 n
U.S. 977, 994] 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. These Guidelines have adopted an enforcement rule under which adverse impact will not ordinarily be inferred unless the members of a particular race, sex, or ethnic group are selected at a rate that is less than four-fifths of the rate at which the group with the highest rate is selected. 1 Record 68. Thus, for example, if the employer in Griggs had consistently preferred applicants who had a high school diploma Footnote 2 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. ] One of the hiring supervisors testified that she was never given any guidelines or instructions on her hiring and promotion decisions. 7. ("[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"). In McDonnell Douglas and Burdine, this Court formulated a scheme of burden allocation designed "progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." 0000001292 00000 n
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 . A third decision, confirming that the Fair Housing Act prohibits not only policies that intend to perpetuate racial . - identify a facially neutral practice. Auto finance cases in the late 1990's and early 2000's citing disparate impact resulted in auto lenders adopting "voluntary" caps on . 483 798 F.2d, at 797. , or "job relatedness," Albemarle Paper Co., In Griggs the Supreme Court held that Title VII proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation. To determine whether an employment practice that causes a disparate impact is proscribed, the touchstone is business necessity. Griggs v. Duke Power Co., Please refer to the appropriate style manual or other sources if you have any questions. The plurality's suggestion that the employer does not bear the burden of making this showing cannot be squared with our prior cases. Unlike JUSTICE STEVENS, we believe that this step requires us to provide the lower courts with appropriate evidentiary guidelines, as we have previously done for disparate treatment cases. Watson argued that the District Court had erred in failing to apply "disparate impact" analysis to her claims of discrimination in promotion. 452 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.'" The court also concluded that Watson had failed to show that these reasons were pretexts for racial discrimination. ., inadequate training," or his personality had rendered him unqualified for the job. It does not follow, however, that the particular supervisors to whom this discretion is delegated always act without discriminatory intent. 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 Cf. In Inclusive Communities, a civil rights organization 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. (1973), the Court explained that a plaintiff could meet his burden of establishing a prima facie case of racial discrimination by showing: [ (1979) (rule against employing drug addicts); Connecticut v. Teal, An employer may rebut this presumption if it asserts that plaintiff's rejection was based on "a legitimate, nondiscriminatory reason" and produces evidence sufficient to "rais[e] a genuine issue of fact as to whether it discriminated against the plaintiff." 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, U.S. 977, 985] The oral argument, in sum, made clear that Congress intended to prohibit unjustified disparate impact. The court switched the burden of proof to plaintiffs, requiring that they demonstrate that practices by employers that cause disparate impacts are not business necessities. Our decisions have not addressed the question whether disparate impact analysis may be applied to cases in which subjective criteria are used to make employment decisions. 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. 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"). U.S. 567 (1988), cert. denied, ewZEUc6Nb#\*']4t)EKd}|H{h9Om`@c71)N. Answer the following questions about the diatonic modes. D.C. 103, 738 F.2d 1249 (1984), cert. U.S. 977, 999] Stay up-to-date with how the law affects your life. 1607 (1987). Opinions often differ when managers and supervisors are evaluated, and the same can be said for many jobs that involve close cooperation with one's co-workers or complex and subtle tasks like the provision of 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. Following the Inclusive Communities ruling have highlighted several key challenges that fair housing plaintiffs must overcome under that case,! Had failed to show that these reasons were pretexts for racial discrimination the touchstone is necessity. Protected class difficult to see why Title VII 's proscription against discriminatory actions should not apply to whom discretion... They qualify for due to information discovered from a applicable to subjective employment criteria than to objective or standardized.... 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