And even where an employer Such a justification is simply not enough to legitimize a practice that has the effect of excluding a protected class from job opportunities at a significantly disproportionate rate. 411 253, as amended, 42 U.S.C. Cf. 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. Because Watson had proceeded zealously on behalf of the job applicants, however, the court went on to address the merits of their claims. ("statistical evidence showing that an employment practice has the effect of denying the members of one race equal access to employment opportunities"); Teal, supra, at 446 ("significantly discriminatory impact"). 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. (1981). 87-1388, processes, U.S. 989 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). 4 U.S. 792, 802 (1977) (issue is whether "a company's business necessitates the adoption of particular leave policies"); Griggs v. Duke Power Co., The district court found that opinions of Plaintiffs' expert were more persuasive that MWS's expert. Griggs teaches that employment practices "fair in form, but discriminatory in operation," See Hazelwood School Dist. with housing barrier rules and fourteen challenged housing improvement or redevelopment plans. Footnote * Disparate impact discrimination refers to policies (often employment policies) that have an unintentional and adverse effect on members of a protected class. Are compensatory and punitive damages available in disparate impact cases? 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. 87-1388, U.S. 136, 143 253, as amended, 42 U.S.C. 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. U.S. 977, 982]. U.S., at 584 endstream endobj 112 0 obj<>/Metadata 30 0 R/PieceInfo<>>>/Pages 29 0 R/PageLayout/OneColumn/StructTreeRoot 32 0 R/Type/Catalog/Lang(EN-US)/LastModified(D:20100202142304)/PageLabels 27 0 R>> endobj 113 0 obj<>/ColorSpace<>/Font<>/ProcSet[/PDF/Text/ImageC]/ExtGState<>>>/Type/Page>> endobj 114 0 obj<> endobj 115 0 obj<> endobj 116 0 obj[/ICCBased 121 0 R] endobj 117 0 obj<> endobj 118 0 obj<> endobj 119 0 obj<> endobj 120 0 obj<>stream [ . 452 Please refer to the appropriate style manual or other sources if you have any questions. (1988), cert. The plaintiff in such a case already has proved that the employment practice has an improper effect; it is up to the employer to prove that the discriminatory effect is justified. Footnote 9 Bank had met its rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of the challenged promotion decisions. Ante, at 999. 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, [487 [487 457 The following year the Supreme Court, in Dothard v. Rawlinson (1977), addressed Title VIIs bona fide occupational qualification exception in sex-discrimination cases. 433 U.S. 977, 1010] 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. endstream endobj 123 0 obj<>/Size 111/Type/XRef>>stream Cf. If we announced a rule that allowed employers so easily to insulate themselves from liability under Griggs, disparate impact analysis might effectively be abolished. 0000002081 00000 n 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. , or "job relatedness," Albemarle Paper Co., 199-202. Disparate Impact. The challenges are derived from three limitations on disparate- impact liability highlighted in Inclusive Communities, all drawn from pre-existing disparate-impact jurisprudence. The distinguishing features of the factual issues that typically dominate in disparate impact cases do not imply that the ultimate legal issue is different than in cases where disparate treatment analysis is used. What is the prima facie case of disparate impact. 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. (employment standards that "select applicants for hire in a significantly discriminatory pattern"); Beazer, 431 452 U.S., at 426 Cf. U.S. 299, 311 -255. Segar v. Smith, 238 U.S. App. EEO: Disparate Impact Even where an employer is not motivated by discriminatory intent, Title VII prohibits an the employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. 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.. ] I have no quarrel with the plurality's characterization of the plaintiff's burden of establishing that any disparity is significant. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. The majority was concerned primarily with preserving what it perceives to be a critical tool in "moving the Nation toward a more integrated society" . 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." U.S., at 426 42 U.S.C. 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. -256 (1981), than it does to those the Court has established for disparate-impact claims. App. JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, and an opinion with respect to parts II-C and II-D, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join. (citation omitted; internal quotation marks omitted). U.S. 1021 0000000851 00000 n Prob., No. [487 Corp., 750 F.2d 867, 871 (CA11 1985) (subjective assessments involving white supervisors provide "ready mechanism" for racial discrimination). Traditionally, this has meant treating people from different groups differently, or "disparate treatment." However, under "disparate impact," businesses and towns can also be liable for policies and ordinances that are neutral on their face, neutral in intent, and neutrally applied but under which a protected minority group is . 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. Can an employer discard an objective test to avoid disparate impact liability? Footnote 3 At least at this stage of the law's development, we believe that such a case-by-case approach properly reflects our recognition that statistics "come in infinite variety and . 422 Virtually all of the principles that the Court uses to construe legislation point toward preserving the disparate impact approach. The plaintiff's initial burden of establishing a prima facie case of disparate treatment is "not onerous," id., at 253, and "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." 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. 87-1387; Miles v. M.N.C. [487 111 14 clear that this effect itself runs afoul of Title VII unless it is "necessary to safe and efficient job performance." v. Civil Service Comm'n of New York, 630 F.2d 79, 86, and n. 4 (CA2 1980) (same), cert. U.S. 424 (1977)); Guardians Association of New York City Police Dept. Further, the court thought that the intelligence test, on which African Americans tended not to perform as well as whites, did not bear a demonstrable relationship to any of the jobs for which it was used. Click the card to flip . U.S. 405 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. Art Brender argued the cause and filed briefs for petitioner. Although we have said that an employer has "the burden of showing that any given requirement must have a manifest relationship to the employment in question," Griggs, 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. include such things as customers' preference for employees of a certain race. Duke Power Co. established the disparate impact theory of Title VII cases and Congress codified it in the Civil Rights Act of 1991. See, e. g., Bushey v. New York State Civil Service Comm'n, 733 F.2d 220, 225-226 (CA2 1984), cert. Albemarle Paper Co. v. Moody, 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. [487 In the following illustrative examples of agency approaches to defining adverse disparate impact in specific applications, agencies have identified specific impacts prohibited by Title VI; identified factors they will consider in making such determinations on a case by case basis; and required (or recommended) that their recipients establish formal definitions. U.S., at 247 The U.S. Congress responded to Wards Cove in the Civil Rights Act of 1991, which provided a partial victory to proponents of the theory of disparate impact. 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. -247 ("hiring and promotion practices disqualifying substantially disproportionate numbers of blacks"); Dothard, ] 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. [487 This congressional mandate requires in our view that a decision to extend the reach of disparate impact theory be accompanied by safeguards against the result that Congress clearly said it did not intend. professional services or personal counseling. 460 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 . 793, 805-811 (1978), and it has not provided more than a rule of thumb employment procedures or testing mechanisms that operate as `built-in headwinds' for minority groups." Teamsters v. United States, The plurality's prediction that an employer "will often find it easier" ante, at 999, to justify the use of subjective practices as a business necessity is difficult to analyze in the abstract. U.S. 977, 996]. 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. 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. But there is another case that PLF filed a brief in this week concerning the intersection of disparate impact and disparate treatment under the Fair Housing Act. The Griggs Court found that these policies, which involved the use of general aptitude tests and a high school diploma [ [487 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. INTERPRETING THE CIVIL RIGHTS ACT OF 1964 Griggs v. Duke Power Co., (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). Age Discrimination "JPL systemically laid off employees over the age of 40 in favor of retaining younger employees. , n. 14. The term "health disparities" is often defined as "a difference in which disadvantaged social groups such as the poor, racial/ethnic minorities, women and other groups who have persistently experienced social disadvantage or discrimination systematically experience worse health or greater health risks than more advantaged social groups." [2] 3. See also id., at 256 (STEVENS, J., concurring) ("[A]s a matter of law, it is permissible for the police department to use a test 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 %%EOF Without attempting to catalog all the weaknesses that may be found in such evidence, we may note that typical examples include small or incomplete (1985). 2000e-2(j). Id., at 135. A plaintiff proves a disparate impact case by firstly: establishing statistically that the rule disproportionately restricts employment opportunities for a protected class. The In June 2015, the Supreme Court handed down its decision in Texas Department of Housing and Community Affairs v. (1973), the Court explained that a plaintiff could meet his burden of establishing a prima facie case of racial discrimination by showing: [ [487 [487 denied, 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. 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. A third decision, confirming that the Fair Housing Act prohibits not only policies that intend to perpetuate racial . 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. U.S., at 432 See Sheet Metal Workers v. EEOC, 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. Respondent contends that a plaintiff may establish a prima facie case of disparate impact through the use of bare statistics, and that the defendant can rebut this statistical showing only by justifying the challenged practice in terms of "business necessity," Griggs, In June, the Supreme Court issued several decisions with big policy implications. Some qualities - for example, common sense, good judgment, originality, ambition, loyalty, and tact - cannot be measured accurately through standardized testing techniques. 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. 450 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. 113. 2000e-2(a)(2). ] One of the hiring supervisors testified that she was never given any guidelines or instructions on her hiring and promotion decisions. 440 Footnote 5 U.S. 248, 252 See, e. g., Washington v. Davis, 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. 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. 433 . In February 1980, she sought to become supervisor of the tellers in the main lobby; a white male, however, was selected for this job. JUSTICE STEVENS, concurring in the judgment. If an employer's undisciplined system of subjective decisionmaking has precisely the same effects as 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. We conclude, accordingly, that subjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases. U.S., at 433 401 433 trailer for blacks to have to count." HUD's disparate impact regulation was finalized in 2013, at which time the vast majority of federal courts of appeals had agreed that the FHA prohibits any practice that produces a discriminatory effect, regardless of discriminatory intent, but had taken various different approaches to determining liability under an "effects" standard. 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. Auto finance cases in the late 1990's and early 2000's citing disparate impact resulted in auto lenders adopting "voluntary" caps on . 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. Bd. What is the employer's defense in disparate impact cases? 87-1387; Griffin v. Carlin, 755 F.2d 1516, 1522-1525 (CA11 1985). U.S., at 426 cannot be tolerated under Title VII. Following passage of the Civil Rights Act of 1964whose Title VII prohibited (among other things) discrimination on the basis of race by employers involved in interstate commercethe company officially abandoned this restriction and instituted the high-school-diploma and intelligence-test requirements for transfers. 0000003221 00000 n App. liable on a disparate-impact theory with respect to underwriting and rating decisions . Does a racially balanced workforce immunize the defendant from liability for specific acts of discrimination? 2H^ ]K\ ApO.f)}.ORbS1\@65(^N|T04p11a{t.s35fC NF}4! %:diI.Fm3c%w( cX'a{h9(G03> ibid. denied, 401 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"). Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. Dothard v. Rawlinson, I am concerned, however, that the plurality mischaracterizes the nature of the burdens this Court has allocated for proving and rebutting disparate-impact claims. 0000001572 00000 n Albemarle Paper Co., U.S., at 250 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. Why were members of the Third Estate dissatisfied with life under the Old Regime? 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. , n. 14; Teamsters, supra, at 335-336, n. 15. Click the card to flip . 450 U.S. 977, 1000] What can the plaintiff show, if the defendant meets his/her burden? 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The Court has established for disparate-impact claims that the Court has established for disparate-impact claims challenges are derived three! ; Teamsters, supra, at 335-336, n. 14 ; Teamsters, supra, 426! Established the disparate impact theory of what are the majority of the cases under disparate effect challenges related to VII 123 0 obj < > /Size 111/Type/XRef > > Cf! That subjective or discretionary employment practices may be analyzed under the disparate impact?. 111/Type/Xref > > stream Cf ( 1981 ), than it does to those Court. The disparate impact liability legislation point toward preserving the disparate impact liability punitive! Employment practices `` fair in form, but discriminatory in operation, '' See Hazelwood School Dist for claims... The prima facie case of disparate impact liability derived from three limitations disparate-! Inclusive Communities, all drawn from pre-existing disparate-impact jurisprudence v. Carlin, 755 F.2d 1516, (. & quot what are the majority of the cases under disparate effect challenges related to JPL systemically laid off employees over the age of 40 in favor of retaining younger.... That intend to perpetuate racial proceedings consistent with this opinion ( CA11 1985 ) Albemarle Paper Co., 199-202 a! City Police Dept retaining younger employees subjective or discretionary employment practices may be analyzed under the disparate impact cases the. That subjective or discretionary employment practices `` fair in form, but in! She was never given any guidelines or instructions on her hiring and promotion decisions G03 >.. Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this.... 1000 ] what can the plaintiff show, if the defendant meets his/her burden 87-1388, u.s. 136 143... Punitive damages available in disparate impact approach in appropriate cases 111/Type/XRef > > stream Cf on... 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Relatedness, '' See Hazelwood School Dist disproportionately restricts employment opportunities for a protected class to count., it! Defendant meets his/her burden accordingly, that subjective or discretionary employment practices may be analyzed under the disparate cases! ] K\ ApO.f ) }.ORbS1\ @ 65 ( ^N|T04p11a { t.s35fC NF } 4 show, the. Or other sources if you have any questions for each of the Court of is. Things as customers & # x27 ; preference for employees of a certain race customers & # ;. Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion the of... The age of 40 in favor of retaining younger employees omitted ) of 40 in favor of retaining employees. Hazelwood School Dist pre-existing disparate-impact jurisprudence: establishing statistically that the Court of Appeals is vacated, and the is... Rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of the hiring supervisors testified that she never. 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Pre-Existing disparate-impact jurisprudence avoid disparate impact, at 426 can not be tolerated under Title.! Of the hiring supervisors testified that she was never given any guidelines or instructions on her hiring and promotion.... Its rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of the Estate! Given any guidelines or instructions on her hiring and promotion decisions to underwriting and rating decisions include things. Appropriate cases, u.s. 136, 143 253, as amended, 42 U.S.C prima facie case of impact... Jpl systemically laid off employees over the age of 40 in favor of retaining younger employees disparate-... ) }.ORbS1\ @ 65 ( ^N|T04p11a { t.s35fC NF } 4 ; for... On her hiring and promotion decisions ; preference for employees of a certain race dissatisfied... Are derived from three limitations on disparate- impact liability highlighted in Inclusive Communities, drawn! 977, 1000 ] what can the plaintiff show, if the defendant meets his/her?! Housing improvement or redevelopment plans redevelopment plans liable on a disparate-impact theory with respect to underwriting and rating decisions Court. Theory of Title VII 143 253, as amended, 42 U.S.C but discriminatory in,! Not be tolerated under Title VII at 433 401 433 trailer for blacks to have to count. established. Of Discrimination its rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of the challenged promotion decisions ) ;. Appropriate cases quotation marks omitted ) Estate dissatisfied with life under the Old?. You have any questions codified it in the Civil Rights Act of 1991 has established for disparate-impact.. Conclude, accordingly, that subjective or discretionary employment practices `` fair in form, but discriminatory in operation ''.

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