. (1981). 422 401 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. 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. U.S. 405, 425 0000006009 00000 n 457 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. . We agree that the inevitable focus on statistics in disparate impact cases could put undue pressure on employers to adopt inappropriate prophylactic measures. ] Nor can the requirement that a plaintiff in a disparate-impact case specify the employment practice responsible for the statistical disparity be turned around to shield from liability an employer whose selection process is so poorly defined that no specific criterion can be identified with any certainty, let alone be connected to the disparate effect. U.S. 1115 Congress expressly provided that Title VII not be read to require preferential treatment or numerical quotas. 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 Virtually all of the principles that the Court uses to construe legislation point toward preserving the disparate impact approach. Definition. [ 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. Nothing in our cases supports the plurality's declaration that, in the context of a disparate-impact challenge, "the ultimate burden of proving U.S., at 584 The court also concluded that Watson had failed to show that these reasons were pretexts for racial discrimination. The judiciary has applied the theory of disparate impact beyond Title VII to a variety of other federal nondiscrimination statute titles and laws. Here a class of women challenged a states height and weight requirements for prison guards at male correctional facilities. ("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"). contradicted by our cases. Rather, disparate impact arises when a plaintiff proves that a neutral policy results in a disparate, negative impact on the protected group. [487 We granted certiorari to determine whether the court below properly held disparate impact analysis inapplicable to a subjective or discretionary promotion system, and we now hold that such analysis may be applied. [487 3 Footnote 8 (discretionary promotion decision). Cf. 430 -804 (1973), and Texas Dept. "If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own." -428. In Inclusive Communities, a civil rights organization In contrast, we have consistently used conventional disparate treatment theory, in which proof of intent to discriminate is required, to review hiring and promotion decisions that were based on the exercise of personal judgment or the application of inherently subjective criteria. 426 Cf. What is the employer's defense in disparate impact cases? The complaint also alleges that older employees were passed over for rehire in favor of less qualified, younger employees. 433 35, 35 (1985) (noting that "litigious climate has resulted in a decline in the use of tests and an increase in more subjective methods of hiring"). Footnote 10 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 is therefore insufficient to shift the burden of proving a lack of discriminatory intent to the defendant. Stay up-to-date with how the law affects your life. Even though it might be accidental on the part of the offender, it's nonetheless considered a violation of the Civil Rights Act and is therefore . ., inadequate training," or his personality had rendered him unqualified for the job. . Brief for the American Psychological Association as Amicus Curiae 2. 475 426 U.S., at 255 (employer must "prov[e] that the challenged requirements are job related"); Griggs v. Duke Power Co., If we announced a rule that allowed employers so easily to insulate themselves from liability under Griggs, disparate impact analysis might effectively be abolished. employee fared under this hypothetical selection system is whether the employee was riffed. Footnote 2 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. [487 U.S., at 329 190. 4/5 rule- selection rate for members of protected group is less than 80% of rate for highest scoring group creates a prima facie case of d.i. 798 F.2d, at 797. made out a prima facie case of discriminatory promotion practices under disparate impact theory. by Bill Lann Lee, Stephen M. Cutler, Joan M. Graff, Patricia A. Shiu, Julius LeVonne Chambers, Ronald L. Ellis, Charles Stephen Ralston, Antonia Hernandez, and E. Richard Larson. 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.. The parties present us with stark and uninviting alternatives. App. 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. 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. 947, 987-988 (1982) (discussing feasibility of validating subjective hiring assessments). In sum, under Griggs and its progeny, an employer, no matter how well intended, will be liable under Title VII if it relies upon an employment-selection process that disadvantages a protected class, unless that process is shown to be necessary to fulfill legitimate business requirements. for blacks to have to count." Respondent warns, however, that "validating" subjective selection criteria in this way is impracticable. The plurality's suggestion that the employer does not bear the burden of making this showing cannot be squared with our prior cases. 478 What is the prima facie case of disparate impact. 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. (1976) (Title VII litigation "involves a more probing judicial review, and less deference to the seemingly reasonable acts of [employers] than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed"). On April 11th, 1968, Lyndon B. Johnson signed the Fair Housing Act (FHA) into law, calling it one of "the proudest moments" of his time in the White House. It reads as follows: The email address cannot be subscribed. Initially, this resulted in high voter turnout among African-Americans in the South. by Jim Mattox, Attorney General, Mary F. Keller, Executive Assistant Attorney General, and James C. Todd; for the American Civil Liberties Union et al. ] Both concurrences agree that we should, for the first time, approve the use of disparate impact analysis in evaluating subjective selection practices. v. United States, 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. McDonnell Douglas, requirement, were not demonstrably related to the jobs for which they were used. An employee subjected to disparate treatment is being discriminated against intentionally. (1973), the Court explained that a plaintiff could meet his burden of establishing a prima facie case of racial discrimination by showing: [ 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. 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. The oral argument, in sum, made clear that Congress intended to prohibit unjustified disparate impact. 450 411 U.S. 977, 994] 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. Auto finance cases in the late 1990's and early 2000's citing disparate impact resulted in auto lenders adopting "voluntary" caps on . 485 (1978) (hiring decisions based on personal knowledge of candidates and recommendations); Texas Dept. I therefore cannot join Parts II-C and II-D. The District Court later decertified this broad class because it concluded, in light of the evidence presented at trial, that there was not a common question of law or fact uniting the groups of applicants and employees. (1977) (issue is whether "a company's business necessitates the adoption of particular leave policies"); Griggs v. Duke Power Co., [487 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." L. Rev. This lesson should not be forgotten simply because the "fair form" is a subjective one. For an employee to claim disparate treatment, he or she must show they were treated differently based on their protected traits. Albemarle Paper Co. v. Moody, 433 denied, The court decided that the disparate impact was justifiable, because strength and size constituted bona fide occupational requirements for a job that involved maintaining order in prisons. 469 . 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. Click the card to flip . 0000002652 00000 n We express no opinion as to the other rulings of the Court of Appeals. U.S. 977, 990] 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. Under disparate impact, a defendant may be held liable for discriminating against a protected group without any evidence of intent or motivation to discriminate. The judgment is vacated, and the case is remanded. Six months after Brown was promoted, his performance was evaluated as only "close to being `competent.'" App. 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. v. United States, U.S. 977, 1001] 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, 401 [487 See 29 CFR 1607.6(B)(1) and (2) (1987) (where selection procedure with disparate impact cannot be formally validated, employer can "justify continued use of the procedure in accord with Federal law"). Footnote 6 433 [1] Unfortunately, millions of Americans are denied jobs that they qualify for due to information discovered from a . 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 . ] 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 The Language of Composition: Reading, Writing, Rhetoric, Lawrence Scanlon, Renee H. Shea, Robin Dissin Aufses, Edge Reading, Writing and Language: Level C, David W. Moore, Deborah Short, Michael W. Smith. (1973), and Texas Dept. -256 (1981), than it does to those the Court has established for disparate-impact claims. [487 Bruce W. McGee argued the cause and filed a brief for respondent. [487 A third decision, confirming that the Fair Housing Act prohibits not only policies that intend to perpetuate racial . Cf. 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. See, e. g., Washington v. Davis, allow for women to be excluded from firefighters' positions. for the courts, see, e. g., Clady v. County of Los Angeles, 770 F.2d 1421, 1428-1429 (CA9 1985), cert. 434 Petitioner employee, who is black, was rejected in favor of white applicants for four promotions to supervisory positions in respondent bank, which had not developed precise and formal selection criteria for the positions, but instead relied on the subjective judgment of white supervisors who were acquainted with the candidates and with the nature of the jobs. What are examples of facially neutral practices? 0000001292 00000 n 422 When the U.S. Supreme Court first recognized the theory, it was hailed as a breakthrough for civil rights. , n. 8. 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." 411 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." (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). U.S. 977, 1006] 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. And even where an employer 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. (1986) (O'CONNOR, J., concurring in part and dissenting in part). [487 2000e-2(j), we think it imperative to explain in some detail why the evidentiary standards that apply in these cases should serve as adequate safeguards against the danger that Congress recognized. 798 F.2d 791 (1986). 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." U.S. 567 See, e. g., Albemarle Paper Co. v. Moody, Because Watson had proceeded zealously on behalf of the job applicants, however, the court went on to address the merits of their claims. The circuit courts are . U.S. 977, 997] It is true, to be sure, that an employer's policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct. Close include a disparate-impact standard of liability. Age Discrimination "JPL systemically laid off employees over the age of 40 in favor of retaining younger employees. First, we note that the plaintiff's burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer's work force. [487 See, e. g., Fudge v. Providence Fire Dept., 766 F.2d 650, 656-659 (CA1 1985). Since the passage of Title VII of the Civil Rights Act of 1964, employers have been prohibited from engaging in two forms of discrimination: disparate treatment (e.g., intentional exclusion of a person because of their identity) and disparate impact (e.g., unintentional disadvantage of a protected class via a facially neutral procedure) [ 4 ]. Bank had met its rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of the challenged promotion decisions. See generally id., at 429-436. What is the prima facie case of disparate impact. U.S. 248, 252 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. U.S., at 426 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 . 3 3 The Court held that disparate-impact claims are cognizable under FHA 3604(a) and 3605(a) (referred to in the Court's opinion as 804(a) and 805(a), which were the original section numbers in the 1968 FHA). U.S. 1109 U.S. 977, 987] Other kinds of deficiencies in facially plausible statistical evidence may emerge from the facts of particular cases. The Act only partially restores disparate impact anal-ysis, while concurrently codifying some of the Rehnquist majority's mischief. . U.S. 977, 996]. 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." The plurality need not have reached its discussion of burden allocation and evidentiary standards to resolve the question presented. of Community Affairs v. Burdine, [487 (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or 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 McDonnell Douglas Corp. v. Green, Footnote 9 II. -332 (absent proof that height and weight requirements directly correlated with amount of strength deemed "essential to good job performance," requirements not justified as business necessity); Albemarle Paper Co. v. Moody, 450 411 In certain cases, facially neutral employment practices that have significant adverse effects on protected groups have been held to violate the Act without proof I, however, find it necessary to reach this issue in order to respond to remarks made by the plurality. Similarly, in Washington v. Davis, the Court held that the "job relatedness" requirement was satisfied when the employer demonstrated that a written test was related to success at a police training academy "wholly aside from [the test's] possible relationship to actual performance as a police officer." -254 (1976) (STEVENS, J., concurring). 2014), for this proposition, which is now Second Circuit law. In February 1981, after Watson had served for about a year as a commercial teller in the Bank's main lobby, and informally as assistant to the supervisor of tellers, the man holding that position was promoted. 1 135 S. Ct. at 2518. . Our cases make clear, however, that, contrary to the plurality's assertion, ante, at 997, a plaintiff who successfully establishes this prima facie case shifts the burden of proof, not production, to the defendant to establish that the employment practice in question is a business necessity. 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. 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. U.S. 977, 1010] . of Governors v. Aikens, supra, at 713, n. 1; McDonnell Douglas, Id., at 256. U.S., at 432 1983-1985). U.S. 977, 984] 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. U.S. 567, 577 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"). . See McDonnell Douglas Corp. v. Green, In Wards Cove Packing Co., Inc. v. Atonio (1989), the Supreme Court imposed significant limitations on the theory of disparate impact. [ their usefulness depends on all of the surrounding facts and circumstances." The plurality's suggested allocation of burdens bears a closer resemblance to the allocation of burdens we established for disparate-treatment claims in McDonnell Douglas Corp. v. Green, 10. 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. (1978). 2000e-2(j). [487 . U.S. 940 113. DI claims may challenge practices that result in discrimination. Of course, in such circumstances, the employer would bear the burden of establishing that an absence of specified criteria was necessary for the proper functioning of the business. The District Court addressed Watson's individual claims under the evidentiary standards that apply in a discriminatory treatment case. Id., at 85. U.S., at 432 As to petitioner's individual claim, the court held that she had not met her burden of proof under the discriminatory treatment evidentiary standard and, for this and other reasons, dismissed the action. 793, 805-811 (1978), and it has not provided more than a rule of thumb See Dothard v. Rawlinson, 450 Id., at 135. 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. Supreme Court Cases The Supreme Court first described the disparate impact theory in 1971, in Griggs v. of Governors v. Aikens, denied, Washington v. Davis, 401 In either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices. 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. xbbb`b``c (1977)); Guardians Association of New York City Police Dept. trailer 426 U.S. 977, 1004] And, in doing so, it highlighted how extraordinary a contrary decision from the Court would be. A federal appeals court ruled Tuesday that two blind students have the right to use disparate impact theory -- which requires plaintiffs only to show that a policy has a disparate impact on them, not that it was intentional -- in a lawsuit against the Los Angeles Community College District.. 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 0000000851 00000 n 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. App. The criterion must directly relate to a prospective employee's ability to perform the job effectively. 426 [ Watson filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). U.S. 440 401 161-162. U.S. 324, 340 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." 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