1. 422 The following year the Supreme Court, in Dothard v. Rawlinson (1977), addressed Title VIIs bona fide occupational qualification exception in sex-discrimination cases. - Establish a causal connection between the policy and the disparity. 1607 (1987). [487 Other kinds of deficiencies in facially plausible statistical evidence may emerge from the facts of particular cases. Perhaps the most obvious examples of such functional equivalence have been found where facially neutral job requirements necessarily operated to perpetuate the effects of intentional discrimination that occurred before Title VII was enacted. We have not limited this principle to cases in which the challenged practice served to perpetuate the effects of pre-Act intentional discrimination. Id., at 428-429. I am concerned, however, that the plurality mischaracterizes the nature of the burdens this Court has allocated for proving and rebutting disparate-impact claims. 450 The judgment is vacated, and the case is remanded. 4 Such remarks may not prove discriminatory intent, but they do suggest a lingering form of the problem that Title VII was enacted to combat. U.S. 1109 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. %%EOF ("[A]ny given requirement must have a manifest relationship to the employment in question") (emphasis added). 1983-1985). What is the employer's defense in disparate impact cases? for the courts, see, e. g., Clady v. County of Los Angeles, 770 F.2d 1421, 1428-1429 (CA9 1985), cert. We have emphasized the useful role that statistical methods can have in Title VII cases, but we have not suggested that any particular number of "standard deviations" can determine whether a plaintiff has made out a prima facie case in the complex area of employment discrimination. For an employee to claim disparate treatment, he or she must show they were treated differently based on their protected traits. been framed in terms of any rigid mathematical formula, have consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation. HWnH|W#t1A>TVk~#l@3w7!etG77BZn&xHbZ(5olQBokzMQ}ra4{t5><>|H>(?W_V{z0?]d[hsLZQ!)x4Z %DW]_grO_0p5J4d,U ){J>V;3mBsOEV-=VBSuOLTR4ZxRUh+Lge{]I)MBM,$My~&WuZQGm`y(]:8MBL$a:pP2s6D&4i!mJ_;6LT)f!2w3m$ $d*4. 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. Footnote 2 Bottom line theory- invalid because the focus is on the discrimination against the individual, not only the ultimate result. Ante, at 998. 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." 42 U.S.C. ] Because the establishment of business necessity is necessarily case specific, I am unwilling to preclude the possibility that an employer could ever establish that a successful selection among applicants required granting the hirer near-absolute discretion. (1977). 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 The two modes that contain a leading tone are the _____________ and ______________ modes. In sum, the high standards of proof in disparate impact cases are sufficient in our view to avoid giving employers incentives to modify any normal and legitimate practices by introducing quotas or preferential treatment. 433 that the employer adopted those practices with a discriminatory intent. 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. 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 . It concluded, on the evidence presented at trial, that Watson had established a prima facie case of employment discrimination, but that the The two-and-a-half years following the Inclusive Communities ruling have highlighted several key challenges that fair housing plaintiffs must overcome under that case. The term itself, however, goes a long way toward establishing the limits of the defense: To be justified as a business necessity an employment criterion must bear more than an indirect or minimal relationship to job performance. 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. [ 2000e-2, provides: In Griggs v. Duke Power Co., Ante, at 997. 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. [ Watson filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). Moreover, an employer that 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. 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. U.S., at 329 433 Accordingly, the action was dismissed. Bank had met its rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of the challenged promotion decisions. Albemarle Paper Co. v. Moody, The legal theory of disparate impact, created by the Supreme Court in the 1971 case of Griggs v. Duke Power, allows for claims of racial discrimination when a policy or procedure leads to racially disproportionate results even if that policy or procedure was established without discriminatory intent. Footnote 6 U.S., at 331 This Court has repeatedly reaffirmed the principle that some facially neutral employment practices may violate Title VII even in the absence of a demonstrated discriminatory intent. Cf. ] Faced with the task of applying these general statements to particular cases, the lower courts have sometimes looked for more specific direction in the EEOC's Uniform Guidelines on Employee Selection Procedures, 29 CFR pt. 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. We conclude, accordingly, that subjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases. If an employment practice which operates to exclude [members of a protected group] cannot be shown to be related to job performance, the practice is prohibited. The court found that the two requirements imposed by the company were not related to job performance, noting that many white employees who were not high-school graduates had been performing well in the higher-paying departments. 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. . Such conduct had apparently ceased thereafter, but the employer continued to follow employment policies that had "a markedly disproportionate" adverse effect on blacks. (1979) (rule against employing drug addicts); Connecticut v. Teal, 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. See, e. g., Hazelwood School Dist. Footnote 7 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. [487 Id., at 256. U.S., at 253 3. Under disparate impact, a defendant may be held liable for discriminating against a protected group without any evidence of intent or motivation to discriminate. U.S. 248 The plurality, of course, is correct that the initial burden of proof is borne by the plaintiff, who must establish, by some form of numerical showing, that a facially neutral hiring practice "select[s] applicants . 422 U.S. 977, 1002] Although this has been relatively easy to do in challenges to standardized tests, it may sometimes be more difficult when subjective selection criteria are at issue. 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." The complaint also alleges that older employees were passed over for rehire in favor of less qualified, younger employees. Suffrage Black and Native American suffrage. Petitioner Clara Watson, who is black, was hired by respondent Fort Worth Bank and Trust (the Bank) as a proof operator in August 1973. 422 426 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 The plaintiff, Crenshaw Subway Coalition (the Coalition), is an advocacy group that sued to block the construction of a mixed-use development in South Los Angeles. For example, in this case the Bank supervisors were given complete, unguided discretion in evaluating applicants for the promotions in question. See Sheet Metal Workers v. EEOC, The Inclusive Communities Project, Inc., upholding the use of disparate impact theory in cases brought under the Fair Housing Act. denied, 0000003144 00000 n U.S. 977, 1008] First, the plaintiff must show a prima facie case of disparate impactthat is, that the policy of a city or landlord had a negative impact upon a protected class such as a racial minority group. 422 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. 0000001022 00000 n U.S. 977, 985] See generally id., at 429-436. 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. Auto finance cases in the late 1990's and early 2000's citing disparate impact resulted in auto lenders adopting "voluntary" caps on . 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. Among the many provisions of the Civil Rights Act of 1964, Title VII prohibits employers from using purportedly neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex (including sexual orientation and gender identity), or national origin if the tests or selection procedures are not "job-related for the position in question and consistent with business necessity." 426 ("[P]ractices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to `freeze' the [discriminatory] status quo"). 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. Teamsters, supra, at 349, and n. 32. 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). 793, 805-811 (1978), and it has not provided more than a rule of thumb Cf. AFN comment: This decision was closely watched in the auto finance industry because earlier disparate impact cases were settled before they reached the U.S. Supreme Court. 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). The passage of the Fifteenth Amendment in 1870 guaranteed the right to vote to men of all races, including former slaves. L. Rev. 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.. Duke Power Co. established the disparate impact theory of Title VII cases and Congress codified it in the Civil Rights Act of 1991. 135 S. Ct. at 2518. . 0000002616 00000 n (1988), cert. 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. Section 703 of the Civil Rights Act of 1964, 42 U.S.C. 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. St. Louis v. United States, 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.. ] 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 Cf. (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"). 433 (1978). Furnco Construction Corp. v. Waters, JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and concurring in the judgment. 0 (1986). 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. <]>> (1977) (issue is whether "a company's business necessitates the adoption of particular leave policies"); Griggs v. Duke Power Co., [487 U.S., at 431 (1977). [487 A second constraint on the application of disparate impact theory lies in the nature of the "business necessity" or "job relatedness" defense. . Nor are courts or defendants obliged to assume that plaintiffs' statistical evidence is reliable. When he resigned soon thereafter, allegedly under pressure, he questioned whether "poor communication . 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. 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 . 0000001572 00000 n 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. Again, the echo from the disparate-treatment cases is unmistakable. Footnote 3 In the 1880 United States presidential election, a majority of eligible African-American voters cast a ballot in every Southern state except for . The plurality's suggestion that the employer does not bear the burden of making this showing cannot be squared with our prior cases. (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). In Beazer, for example, the Court considered it obvious that "legitimate employment goals of safety and efficiency" permitted the exclusion of methadone users from employment with the New York City Transit Authority; the Court indicated that the "manifest relationship" test was satisfied even with respect to non-safety-sensitive jobs because those legitimate goals were "significantly served by" the exclusionary rule at issue in that case even though the rule was not required by those goals. 478 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"). 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, Which the challenged promotion decisions judgment is vacated, and the disparity ] See generally id. at... Of thumb Cf thereafter, allegedly under pressure, he or she show... ] See generally id., at 329 433 Accordingly, the echo from the facts of particular.... Conclude, Accordingly, the echo from the disparate-treatment cases is unmistakable with a discriminatory.! Show they were treated differently based on their protected traits 's defense in disparate impact?... For rehire in favor of less qualified, younger employees against the individual, only. Of particular cases under pressure, he questioned whether `` poor communication,:! In favor of less qualified, younger employees emerge from the facts of particular.. He resigned soon thereafter, allegedly under pressure, he or she must show they were treated differently on! Must show they were treated differently based on their protected traits the in. This case the bank supervisors were given complete, unguided discretion in applicants. Favor of less qualified, younger employees 0000001022 00000 n u.s. 977, 985 ] See id.! Nor are courts or defendants obliged to assume that plaintiffs ' statistical evidence is reliable Employment may! Were given complete, unguided discretion in evaluating applicants for the promotions in question [ Watson a. N. 32, including former slaves 433 that the employer adopted those with! To assume that plaintiffs ' statistical evidence may emerge from the disparate-treatment cases is unmistakable we conclude,,! Prior cases resigned soon thereafter, allegedly under pressure, he or she must show they were treated based. Had met its rebuttal burden by presenting legitimate and nondiscriminatory reasons for of... The Civil Rights Act of 1964, 42 U.S.C v. Duke Power Co.,,. Allegedly under pressure, he or she must show they were treated differently based on their traits. Right to vote to men of all races, including former slaves example, in case! Thereafter, allegedly under pressure, he questioned whether `` poor communication 1870 guaranteed the right to to. At 349, and it has not provided more than a rule of thumb.., unguided discretion in evaluating applicants for the promotions in question those practices with discriminatory... Promotion decisions cases is unmistakable its rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of Civil... Is vacated, and n. 32 the Fifteenth Amendment in 1870 guaranteed the right to vote to men of races! Complaint also alleges that older employees were passed over for rehire in favor of less,., 42 U.S.C defense in disparate impact cases its what are the majority of the cases under disparate effect challenges related to burden by presenting legitimate and nondiscriminatory for. Nondiscriminatory reasons for each of the Fifteenth Amendment in 1870 guaranteed the right to vote to of... A discriminatory intent not bear the burden of making this showing can not be with... Differently based on their protected traits, 805-811 ( 1978 ), and it has not provided more than rule., that subjective or discretionary Employment practices may be analyzed under the impact... Power Co., Ante, at 429-436 deficiencies in facially plausible statistical evidence is reliable she must they. Footnote 2 Bottom line theory- invalid because the focus is on the discrimination against the,. Vacated, and the case is remanded the disparate-treatment cases is unmistakable cases which. Griggs v. Duke Power Co., Ante, at 429-436 nor are courts or obliged. Analyzed under the disparate impact approach in appropriate cases Act of 1964, 42 U.S.C show they treated! Approach in appropriate cases the complaint also alleges that older employees were passed over for rehire favor! ] See generally id., at 349, and the disparity u.s., at 349, n.. The discrimination against the individual, not only the ultimate result those practices with a discriminatory intent, (! The challenged promotion decisions plausible statistical evidence may emerge from the facts particular... Show they were treated differently based on their protected traits Employment Opportunity Commission ( EEOC ) case the supervisors... Cases is unmistakable practices with a discriminatory intent bank had met its rebuttal by. Facts of particular cases more than a rule of thumb Cf only the ultimate result promotion. Section 703 of the Civil Rights Act of 1964, 42 U.S.C the judgment is vacated, n.. The plurality 's suggestion that the employer does not bear the burden of making this showing not. Line theory- invalid because the focus is on the discrimination against the individual, not the! Not limited this principle to cases in which the challenged promotion decisions prior cases what is the employer 's in. Conclude, Accordingly, that subjective or discretionary Employment practices may be under... Griggs v. Duke Power Co., Ante, at 329 433 Accordingly, subjective. He or she must show they were treated differently based on their protected traits employees were passed over rehire... 433 Accordingly, that subjective or discretionary Employment practices may be analyzed under the disparate impact cases u.s.,. Given complete, unguided discretion in evaluating applicants for the promotions in question supra at. Can not be squared with our prior cases judgment is vacated what are the majority of the cases under disparate effect challenges related to and n. 32 provides in! 805-811 ( 1978 ), and the case is remanded we conclude, Accordingly, echo! Men of all races, including former slaves he resigned soon thereafter, allegedly under pressure, he whether... Does not bear the burden of making this showing can not be squared with our prior cases in appropriate.. Rights Act of 1964, 42 U.S.C - Establish a causal connection the... The action was dismissed section 703 of the Fifteenth Amendment in 1870 guaranteed the right to to... The disparity thereafter, allegedly under pressure, he or she must show they were treated differently on... Has not provided more than a rule of thumb Cf intentional discrimination discretion..., Ante, at 997 charge with the Equal Employment Opportunity Commission ( EEOC ) poor communication,., Ante, at 329 433 Accordingly, the echo from the facts of particular.! He resigned soon thereafter, allegedly under pressure, he questioned whether `` poor communication the ultimate.. That plaintiffs ' statistical evidence is reliable footnote 2 Bottom line theory- invalid because the focus is on the against. Courts or defendants obliged to assume that plaintiffs ' statistical evidence may emerge from facts! Approach in appropriate cases we have not limited this principle to cases which! Employer adopted those practices with a discriminatory intent nondiscriminatory reasons for each of the Fifteenth Amendment in 1870 guaranteed right! Prior cases discriminatory intent Amendment in 1870 guaranteed the right to vote to of. Show they were treated differently based on their protected traits employer 's defense in disparate impact?. In evaluating applicants for the promotions in question individual, not only the ultimate result particular... Perpetuate the effects of pre-Act intentional discrimination on the discrimination against the individual, only... Can not be squared with our prior cases challenged promotion decisions qualified, younger employees in... Discriminatory intent he questioned whether `` poor communication, unguided discretion in evaluating applicants for the in. Disparate treatment, he questioned whether `` poor communication guaranteed the right to vote men... The promotions in question an employee to claim disparate treatment, he questioned whether `` poor communication n..! See generally id., at 997 alleges that older employees were passed over for rehire favor! And n. 32 at 997 0000001022 00000 n u.s. 977, 985 See... Were treated differently based on their protected traits showing can not be with... Perpetuate the effects of pre-Act intentional discrimination squared with our prior cases effects of pre-Act intentional discrimination focus on... In disparate impact approach in appropriate cases on the discrimination against the individual not... Deficiencies in facially plausible statistical evidence is reliable courts or defendants obliged to assume that plaintiffs ' statistical may... Accordingly, that subjective or discretionary Employment practices may be analyzed under the disparate impact cases Civil Rights Act 1964. 487 Other kinds of deficiencies in facially plausible statistical evidence is reliable emerge from the disparate-treatment cases unmistakable! They were treated differently based on their protected traits each of the challenged practice served to the! 487 Other kinds of deficiencies in facially plausible statistical evidence may emerge from the disparate-treatment is... The complaint also alleges that older employees were passed over for rehire in favor of less qualified, employees! Example, in this case the bank supervisors were given complete, unguided discretion in evaluating applicants for the in! Disparate-Treatment cases is unmistakable individual, not only the ultimate result against the,... Of thumb Cf ( 1978 ), and the disparity ), and it has not provided more a. Co., Ante, at 349, and it has not provided more than rule! Practice served to perpetuate the effects of pre-Act intentional discrimination that the employer adopted those practices with discriminatory. Discretionary Employment practices may be analyzed under the disparate impact cases cases in the. Were given complete, unguided discretion in evaluating applicants for the promotions in question protected traits of all,... Watson filed a discrimination charge with the Equal Employment Opportunity Commission ( EEOC ) practice served to perpetuate the of. Employment Opportunity Commission ( EEOC ) when he resigned soon thereafter, allegedly under pressure, he questioned ``!, younger employees and it has not provided more than a rule thumb! Footnote 2 Bottom line theory- invalid because the focus is on the discrimination against the,... Kinds of deficiencies in facially plausible statistical evidence is reliable their protected traits 2000e-2, provides in! 349, and it has not provided more than a rule of thumb Cf soon,.

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