190. professional services or personal counseling. Cf. by Deborah A. Ellis, Isabelle Katz Pinzler, and Joan E. Bertin; for the American Psychological Association by Donald N. Bersoff; for the Lawyers' Committee for Civil Rights Under Law by John Townsend Rich, Conrad K. Harper, Stuart J. Unlike a [487 U.S. 977, 980] disparate-treatment claim of intentional discrimination, which a prima facie case establishes only by inference, the disparate impact caused by an employment practice is directly established by the numerical disparity shown by the prima facie case, and the employer can avoid liability only if it can prove that the . . In other words, if a company's selection system made it statistically more difficult than pure chance for a member of a certain group, such as women or African-Americans, to get a job, then this could be reasonably viewed as evidence that the selection system was systematically screening out members of that social group. U.S., at 426 450 However, civil rights advocates have been disappointed as federal courts have increasingly limited how and when plaintiffs may file disparate-impact claims. 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. In Wards Cove Packing Co., Inc. v. Atonio (1989), the Supreme Court imposed significant limitations on the theory of disparate impact. . 422 The requirement for disparate impact claims is the plaintiff "must at least set forth enough factual allegations to plausible support each of the basic elements of a disparate impact claim." The Circuit cites Adams v. City of Indianapolis, 742 F.3d 720 (7th Cir. INTERPRETING THE CIVIL RIGHTS ACT OF 1964 U.S. 567, 577 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. 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. 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. 0000001292 00000 n Id., at 428-429. 0000002652 00000 n Washington v. Davis, [487 post, at 1000-1001, 1005-1006 (BLACKMUN, J., concurring in part and concurring in judgment). [487 The prima facie case of disparate impact established by a showing of a significant statistical disparity is notably different. U.S., at 255 [487 [487 St. Louis v. United States, For example, in this case the Bank supervisors were given complete, unguided discretion in evaluating applicants for the promotions in question. See, e. g., Albemarle Paper Co. v. Moody, U.S. 1004 , n. 14. JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and concurring in the judgment. Our formulations, which have never Congress has specifically provided that employers are not required to avoid "disparate impact" as such: We do not believe that disparate impact theory need have any chilling effect on legitimate business practices. U.S. 977, 1008] 0000003221 00000 n 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. Believing that diplomas and tests could become "masters of reality," id., at 433, which would perpetuate the effects of pre-Act discrimination, the Court concluded that such practices could not be defended simply on the basis of their facial neutrality or on the basis of the employer's lack of discriminatory intent. Please refer to the appropriate style manual or other sources if you have any questions. . Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination. A third decision, confirming that the Fair Housing Act prohibits not only policies that intend to perpetuate racial . If we announced a rule that allowed employers so easily to insulate themselves from liability under Griggs, disparate impact analysis might effectively be abolished. This case requires us to decide what evidentiary standards should be applied under Title VII of the Civil Rights Act of 1964, 78 Stat. 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." 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 . What other rules do courts use instead of the 4/5 rule? Cf. [487 (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). 195-197, 203. , n. 14; Teamsters, supra, at 335-336, n. 15. Furnco Construction Corp. v. Waters, What can the plaintiff show, if the defendant meets his/her burden? 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. 10. U.S., at 432 Please try again. U.S. 977, 1007] 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. After a trial of nine days with twenty witnesses and two experts, the district court ruled that Plaintiffs had presented a prima facie case of disparate impact discrimination, and that they were entitled to judgment on their class claims. U.S. 792, 802 87-1387; Griffin v. Carlin, 755 F.2d 1516, 1522-1525 (CA11 1985). (1982). App. In Griggs itself, for example, the employer had a history of overt racial discrimination that predated the enactment of the Civil Rights Act of 1964. 431 483 (1987), cert denied, No. 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). Footnote 3 U.S. 229, 247 2 Initially, this resulted in high voter turnout among African-Americans in the South. 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 . xb```b``[ @Pw2$"dTt"g:"::: jw4U/N9lu@SLC!K ( v (p,Fk b`8H320.0 g`e40 ' (1973), and Texas Dept. U.S., at 331 The District Court addressed Watson's individual claims under the evidentiary standards that apply in a discriminatory treatment case. Furthermore, she argues, if disparate impact analysis is confined to objective tests, employers will be able to substitute subjective criteria having substantially identical effects, and Griggs will become a dead letter. 450 U.S. 977, 1009] Under disparate impact, a defendant may be held liable for discriminating against a protected group without any evidence of intent or motivation to discriminate. 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. 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 parties present us with stark and uninviting alternatives. Footnote 9 Disparate impact is usually unintentional in nature; disparate treatment is the term for outright and willful discrimination. 422 Whether the employer's decision resulted from its ostensi-bly neutral criteria (the contention in a disparate impact case) 11. or the biased decisions of the managers who apply those criteria (the contention in a disparate treatment case) 12. thus . . ] 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. 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 - Establish a causal connection between the policy and the disparity. 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. See, e. g., Washington v. Davis, U.S. 989 Footnote 3 If Sandoval is applied in this context, private plaintiffs will no longer be able to sue to enforce those regulations. On the contrary, the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times. It would be equally unrealistic to suppose that employers can eliminate, or discover and explain, the myriad of innocent causes that may lead to statistical imbalances in the composition of their work forces. [ 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. 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. 2014), for this proposition, which is now Second Circuit law. 426 U.S. 938 433 of Governors v. Aikens, MAJORITY: Held: Disparate-impact claims are cognizable under the Fair Housing Act. 411 U.S. 977, 1001] Having decided that disparate impact analysis may in principle be applied to subjective as well as to objective practices, we turn to the evidentiary standards that should apply in such cases. , n. 15 (1977) (in disparate-treatment challenge "[p]roof of discriminatory motive is critical"). , n. 5 (1981) (recognizing, in the context of articulating allocation of burdens applicable to disparate-treatment claims, that "the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes"); United States Postal Service Bd. made out a prima facie case of discriminatory promotion practices under disparate impact theory. (1977). (1988), cert. Are compensatory and punitive damages available in disparate impact cases? Disability laws also prohibit disparate impacts. (1981). denied, No. , n. 8. 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. 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. 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. Each of our subsequent decisions, however, like Griggs itself, involved standardized employment tests or criteria. Nothing in our cases supports the plurality's declaration that, in the context of a disparate-impact challenge, "the ultimate burden of proving See McDonnell Douglas Corp. v. Green, 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. The challenges are derived from three limitations on disparate impact liability highlighted in Inclusive Communities, all drawn from pre-existing disparate impact jurisprudence. Neither the District Court nor the Court of Appeals has evaluated the statistical evidence to determine whether petitioner ] 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. 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 A second constraint on the application of disparate impact theory lies in the nature of the "business necessity" or "job relatedness" defense. We have not limited this principle to cases in which the challenged practice served to perpetuate the effects of pre-Act intentional discrimination. The violation alleged in a disparate-treatment challenge focuses exclusively on the intent of the employer. Disparate impact discrimination refers to policies (often employment policies) that have an unintentional and adverse effect on members of a protected class. It may be that the relevant data base is too small to permit any meaningful statistical analysis, but we leave the Court of Appeals to decide in the first instance, on the basis of the record and the principles announced today, whether this case can be resolved without further proceedings in the District Court. 113. of Governors v. Aikens, supra, at 713, n. 1; McDonnell Douglas, requirement, were not demonstrably related to the jobs for which they were used. [ In Griggs, for example, we examined "requirements [that] operate[d] to disqualify Negroes at a substantially higher rate than white applicants." clear that this effect itself runs afoul of Title VII unless it is "necessary to safe and efficient job performance." 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. 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." 440 401 422 199-202. See Dothard v. Rawlinson, cannot be read, consistently with Title VII principles, to lessen the employer's burden of justifying an employment practice that produces a disparate impact simply because the practice relies upon subjective assessments. 0000000016 00000 n for the courts, see, e. g., Clady v. County of Los Angeles, 770 F.2d 1421, 1428-1429 (CA9 1985), cert. 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 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. Dothard v. Rawlinson, The court reasoned that Title VII of the Civil Rights Act involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed. In addition, the court expressed its concern that extending the theory of disparate impact to constitutional claims would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.. The judgment is vacated, and the case is remanded. U.S., at 433 . Accordingly, the action was dismissed. 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. . The requirements excluded approximately 40 percent of all women but only 1 percent of men. Why were members of the Third Estate dissatisfied with life under the Old Regime? with housing barrier rules and fourteen challenged housing improvement or redevelopment plans. 426 798 F.2d 791 (1986). [487 1. (1986). TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. allow for women to be excluded from firefighters' positions. Footnote 8 As explained above, once it has been established that a selection method has a significantly disparate impact on a protected class, it is clearly not enough for an employer merely to produce evidence that the method of selection is job related. U.S., at 425 ] One of the hiring supervisors testified that she was never given any guidelines or instructions on her hiring and promotion decisions. If the ruling is upheld, a lawyer for the National Federation of the Blind, which joined the case, said . 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." ] 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 Why is a bona fide seniority system a facially neutral practice? 450 U.S., at 254 1 A plaintiff proves a disparate impact case by firstly: establishing statistically that the rule disproportionately restricts employment opportunities for a protected class. , n. 1 (1983) ("We have consistently distinguished disparate-treatment cases from cases involving facially neutral employment standards that have disparate impact on minority applicants"). See, e. g., Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 189 (CA5 1983) ("The flaw in the plaintiffs' proof was its failure to establish the required causal connection between the challenged employment practice (testing) and discrimination in the work force. 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. 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. 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, 0 The following year the Supreme Court, in Dothard v. Rawlinson (1977), addressed Title VIIs bona fide occupational qualification exception in sex-discrimination cases. 3 In so doing, the plurality projects an application of disparate-impact analysis to subjective employment practices that I find to be inconsistent with the proper evidentiary standards and with the central purpose of Title VII. 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. (discretionary promotion decision). (1971), this Court held that a plaintiff need not necessarily prove intentional discrimination in order to establish that an employer has violated 703. Footnote 10 438 ] 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. (1982) (written examination). The circuit courts are . It is here that the concerns raised by respondent have their greatest force. (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. 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. 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." Can subjective and discretionary employment practices be analyzed under the disparate impact theory? Virtually all of the principles that the Court uses to construe legislation point toward preserving the disparate impact approach. pending, No. 457 Bd. App. of Community Affairs v. Burdine, Cf. 253, as amended, 42 U.S.C. The majority was concerned primarily with preserving what it perceives to be a critical tool in "moving the Nation toward a more integrated society" . Griggs teaches that employment practices "fair in form, but discriminatory in operation," Cf. 1979 to 2006). Later cases have framed the test in similar terms. See, e. g., Bushey v. New York State Civil Service Comm'n, 733 F.2d 220, 225-226 (CA2 1984), cert. [487 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 Factors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer's legitimate business goals. Do you have to show intent in disparate impact cases? 452 . At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. U.S., at 584 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.
Strikethrough Text Shortcut, Articles W