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Disparate impact

Qinglan Bai

Disparate impact

Qinglan Bai

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Employment discrimination

Employment discrimination: discrimination in hiring, promotion, job assignment, termination, and compensation.

Laws often prohibit discrimination on the basis of: Race or color Ethnicity or national origin Sex or gender Pregnancy Religion or creed Political affiliation Language abilities Citizenship Disability or medical condition Age…

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Duckling--Racial segregation is one of the most

serious problems in our world.

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US Civil Rights Act of 1964

The Civil Rights Act of 1964 (enacted July 2, 1964) was a landmark piece of legislation in the United States that outlawed major forms of discrimination against blacks and women, including racial segregation.

Title VII of the Act, prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin.

The bill was called for by President John F. Kennedy in his civil rights speech of June 11, 1963

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§ 4 . Intentional and Unintentional Discrimination

“Disparate-Treatment” Discrimination Plaintiff is a member of a

protected group Plaintiff suffered an adverse

employment action Plaintiff is otherwise qualified

to hold the position (minimally)

the Defendant's actions were motivated by discriminatory intent.

“Disparate Impact” Discrimination.a disproportionate

“adverse impact”, caused by

an employment practice or policy ,on

members of the protected class, without

"business necessity"

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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 effect.

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adverse impact: substantially different rate of selection in hiring,

promotion, or other employment decision which works to the disadvantage of members of a race or sex group.

Protected class:The term describes characteristics or factors

which can not be targeted for discrimination and harassment, such as race, gender, age.

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Litigation Process

Disparate treatment Disparate impact

Show intent? Yes No

Prima facie case

Disparate treatment - intentional practice

Disparate impact - effect of practice

Employer’s rebuttal

Nondiscriminatory reason(s) for practice or show BFOQ

Practice job-related and consistent with business

necessity

Plaintiff’s rebuttal

Reason is a pretext for discrimination

Practice not job-related; employer will not adopt practice causing

less adverse impact

Remedies Consent decree; compensatory and punitive damages

Consent decree; equitable relief, i.e. back pay

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BFOQ :a bona fide occupational qualification is a quality that employers are allowed to consider when making decisions on the hiring and retention of employees

– qualities that when considered in other contexts would constitute discrimination .Such qualifications must be listed in the employment offering.

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IRAC (pronounced EYE-rack) generally stands for: Issue, Relevant law, Application to facts, and Conclusion

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Griggs v. Duke Power Co., (1971) Fact1

In the 1950s Duke Power's Dan River plant had a policy that African-Americans were allowed to work only in its Labor department, which constituted the lowest-paying positions in the company.

In 1955 the company added the requirement of a high school diploma for its higher paid jobs.

After the passage of the Civil Rights Act the company removed its racial restriction, but retained the high school diploma requirement, and added the requirement of an IQ test as well as the diploma.

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Griggs v. Duke Power Co., (1971) Fact2

African American applicants, less likely to hold a high school diploma and averaging lower scores on the IQ tests, were selected at a much lower rate for these positions compared to white candidates.

It was found that white people who had been working at the firm for some time, but met neither of the requirements, performed their jobs as well as those that did meet the requirements.

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Issue: Whether, in a Title VII case, the giving of general intelligence tests and requiring a high school diploma for employment are violations of equal protection if the practical result is to statistically exclude more blacks than whites, and the tests do not have a demonstrated predictive affect on job performance?

Holding: Yes

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Reasoning: Artificial and unnecessary barriers to employment operate invidiously to discriminate against blacks. The motive of good or bad intent does not change the fact that the practical affect of the employment standards was discrimination against blacks. Congress intended to prevent the consequences of racially biased employment screens, not just the motivation behind them.

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Griggs v. Duke Power Co., (1971) Decision

if such tests disparately impact ethnic minority groups, businesses must demonstrate that such tests are "reasonably related" to the job for which the test is required.

employment tests (when used as a decisive factor in employment decisions) are prohibited when they are not a "reasonable measure of job performance," regardless of the absence of actual intent to discriminate.

Since the aptitude tests involved, and the high school diploma requirement, were broad-based and not directly related to the jobs performed, Duke Power's employee transfer procedure was found by the Court to be in violation of the Civil Rights Act.

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City’s Fire Department offered promotional exams to fill lieutenant and captain positions.

City regulations required that once the test results were certified, the fire department had to promote the top 3 scorers on each exam. No blacks would be promoted under this scenario.

The City declined to certify the results out of a concern that the tests were possibly racially biased.

Ricci v. DeStefano (2009) Facts

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written and oral examinations

Captain exam: the top 9 scorers included 7 whites and 2 Hispanics.

Lieutenant exam : all the top 10 scorers were white. 0

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whi tes hi spani cs

Captai n

Li eutenant

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Seventeen white firefighters and one Hispanic firefighter sued the City alleging that by failing to certify the results, the City violated Title VII’s prohibition against disparate-treatment based on race and the Equal Protection Clause of the 14th Amendment. Frank Ricci, the lead plaintiff in the case, is a dyslexic who practiced

with flash cards and hired a tutor to help him study for the test.

The District Court granted the City’s motion for summary judgment, accepting its argument that certifying the results would cause it to make promotional decisions based on a test that had a racially disparate impact.

A panel of the Second Circuit Court of Appeals including now Supreme Court Justice Sotomayor affirmed with limited analysis.

Ricci v. DeStefano (Proceedings Below)

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Issue: Whether fear of litigation alone can justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions?

Holding: No.

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Listen to the story:

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The Supreme Court reversed, holding that “[f]ear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions….”

In reconciling the competing Title VII provisions prohibiting both disparate treatment and disparate impact, the Court ruled that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”

Ricci v. DeStefano (Decision)

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The Court explained the City would be liable under a disparate-impact theory only if the examinations were not job-related and consistent with business necessity or if the City could have adopted an equally effective and less discriminatory alternative for selecting candidates who should be promoted.

A mere showing of a significant statistical disparity does not meet this “strong basis in evidence standard.”

Ricci v. DeStefano (Decision Con’t.)

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statistical data alone →show discriminatory effect of policies?EnoughNot enough

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“Intent” proof burden: the burden was on the plaintiff the source of the unequal representation of races in the

work force was due to the particular policy in issue, and not to other causes that are beyond the control of the

employer.

Dissent: The majority position would make it too difficult for legitimate claims to overcome the burden of proof.