0000002616 00000 n See Burdine, supra, at 252, n. 5; see also United States Postal Service Bd. 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 . ] As a corollary, of course, a Title VII plaintiff can attack an employer's offer of proof by presenting contrary evidence, including proof that the employer's 1 / 19. Petitioner contends that subjective selection methods are at least as likely to have discriminatory effects as are the kind of objective tests at issue in Griggs and our other disparate impact cases. (1975) (written aptitude tests); Washington v. Davis, supra (written test of verbal skills); Dothard v. Rawlinson, *. with housing barrier rules and fourteen challenged housing improvement or redevelopment plans. 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. ] It bears noting that the question on which we granted certiorari, and the question presented in petitioner's brief, is whether disparate-impact analysis applies to subjective practices, not where the burdens fall, if the analysis applies. It concluded, on the evidence presented at trial, that Watson had established a prima facie case of employment discrimination, but that the 8, Allowing an employer to escape liability simply by articulating vague, inoffensive-sounding subjective criteria would disserve Title VII's goal of eradicating discrimination in employment. 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 (1982). Albemarle Paper Co., U.S. 977, 994] 457 7. Disparate impact is the idea that a policy can have a discriminatory effect even if it wasn't created with an intent to discriminate. And, in doing so, it highlighted how extraordinary a contrary decision from the Court would be. St. Louis v. United States, 176 A key component for establishing a disparate impact case is demonstrating that there is "a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national . In Pacific Shores . Id., at 428-429. In fact, a quantitative survey of disparate impact cases over the past four decades found that disparate impact plaintiffs only rarely prevail,3 indicating that the availability of disparate impact liability is not an obstacle to legitimate planning or business objectives. [487 The plurality's suggestion that the employer does not bear the burden of making this showing cannot be squared with our prior cases. 401 Dothard v. Rawlinson, For an employee to claim disparate treatment, he or she must show they were treated differently based on their protected traits. 422 113. ] See Texas Dept. The complaint also alleges that older employees were passed over for rehire in favor of less qualified, younger employees. a system pervaded by impermissible intentional discrimination, it is difficult to see why Title VII's proscription against discriminatory actions should not apply. ] See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1485 (CA9) (en banc) ("It would subvert the purpose of Title VII to create an incentive to abandon efforts to validate objective criteria in favor of purely discretionary hiring methods"), on return to panel, 827 F.2d 439 (1987), cert. 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. 253, as amended, 42 U.S.C. 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." For example, in this case the Bank supervisors were given complete, unguided discretion in evaluating applicants for the promotions in question. 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." Albemarle Paper Co. v. Moody, Disparate impact discrimination refers to policies (often employment policies) that have an unintentional and adverse effect 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. The prima facie case of disparate impact established by a showing of a significant statistical disparity is notably different. (1971) ("Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question") (emphasis added in each quotation). MAJORITY: Held: Disparate-impact claims are cognizable under the Fair Housing Act. Indeed, the less defined the particular criteria involved, or the system relied upon to assess these criteria, the more difficult it may be for a reviewing court to assess the connection between the selection process and job performance. 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. It concluded that Watson had failed to establish a prima facie case of racial discrimination in hiring: the percentage of blacks in the Bank's work force approximated the percentage of blacks in the metropolitan area where the Bank is located. The majority concluded that there was no abuse of discretion in the District Court's class decertification decisions. 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 1607 (1987). Bottom line theory- invalid because the focus is on the discrimination against the individual, not only the ultimate result. 0000008679 00000 n their usefulness depends on all of the surrounding facts and circumstances." Standardized tests and criteria, like those at issue in our previous disparate impact cases, can often be justified through formal "validation studies," which seek to determine whether discrete selection criteria predict actual on-the-job performance. 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. 426 Id., at 85. 411 (1977). 422 If the employer satisfies "this burden of production," then "the factual inquiry proceeds to a new level of specificity," id., at 255, and it is up to the plaintiff to prove that the proffered reason was a pretext for discrimination. Footnote 1 2 Connecticut v. Teal, 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 . U.S., at 432 U.S., at 331 [487 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. 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. 485 U.S., at 329 https://www.britannica.com/topic/disparate-impact, American Bar Association - Disparate Impact: Unintentional Discrimination, Stetson University - College of Law - Disparate Impact Discrimination: The Limits of Litigation, the Possibilities for Internal Compliance. 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. Griggs v. Duke Power Co., 450 Unlike a claim of intentional discrimination, which the McDonnell Douglas factors establish only by inference, the disparate impact caused by an employment practice is directly established by the numerical disparity. U.S. 977, 1009] 161-162. Relying on Fifth Circuit precedent, the majority of the Court of Appeals panel held that "a Title VII challenge to an allegedly discretionary promotion system is properly analyzed under the disparate treatment model rather than the disparate impact model." Footnote 7 This statement warrants further comment in two respects. 433 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. 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. -432. [487 U.S., at 802 Because Watson had proceeded zealously on behalf of the job applicants, however, the court went on to address the merits of their claims. U.S. 977, 989] -254 (1976) (STEVENS, J., concurring). [487 455 [487 What is the employer's defense in disparate impact cases? 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. [1] Unfortunately, millions of Americans are denied jobs that they qualify for due to information discovered from a . U.S. 482 Please refer to the appropriate style manual or other sources if you have any questions. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. . Let us know if you have suggestions to improve this article (requires login). . When we consider the increasing number of Americans with criminal records, and the increasing number of employers conducting background checks as a criteria to hiring, it is no surprise that ex-offenders face major hurdles in obtaining employment upon their release. U.S. 1117 Prob., No. 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 440 [487 See McDonnell Douglas Corp. v. Green, 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. Nevertheless, in Alexander v. Choate (1985), the Supreme Court assumed that Section 504 of the Rehabilitation Act of 1973 reaches at least some conduct that has an unjustifiable disparate impact upon the handicapped. A similar statute, the Americans with Disabilities Act (ADA), prohibits the use of standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability.. 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. 422 [487 Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Clegg, David K. Flynn, and Charles A. Shanor; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, Edward E. Potter, and Garen E. Dodge; for the American Society for Personnel Administration et al. 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"). 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. . U.S., at 426 tised the 1991 Act as a bill that would return disparate impact analy-sis to its pre-Ward's Cove status, in reality, the Act largely represents a compromise. that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times." 87-1388, 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. liable on a disparate-impact theory with respect to underwriting and rating decisions . U.S. 324, 335 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 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"). 401 trailer [ Texas Dept. 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 . Footnote 4 2000e et seq., is flatly 426 Disparate Impact. U.S. 977, 1004] It is an employer's obligation to persuade the reviewing court of this fact. that the employer adopted those practices with a discriminatory intent. In 1955, the Duke Power Company, a North . 111 0 obj <> endobj 7 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. The legal theory of disparate impact, created by the Supreme Court in the 1971 case of Griggs v. 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