chapter 3: systemic disparate impact discrimination title

Chapter 3: Systemic Disparate Impact Discrimination

• Title VII Sec. 703(k) [p. 183]

• (1) Plaintiffs’ prima facie case of disparate impact

• (2) Employer’s job-related and business necessity proof

• (3) Plaintiff demonstrates an alternative employment practice and the employer refuses to adopt it

• E.g.: no-beard policy [p. 215]


• Jones v. City of Boston (1st Cir. 2016)• The facially neutral hair drug test: negative for over 99% of

white and 98% of black persons tested

• Court: the test was job-related and consistent with business necessity [p. 216]

• The proposed alternative employment practice: hair test plus urinalysis [pp. 217-18]

• Did the employer refuse to adopt the alternative practice?

Validating Employment Tests

• Criterion validation: statistical demonstration between (1) scores on a selection procedure and (2) job performance of a sample of workers

• Content validation: demonstration that the content of selection procedure (e.g., typing test) is representative of the important aspects of job performance as a typist• Requires job analysis: knowledge, skills, and abilities (KSAs)[p. 223

note 3]

• Construct validation: demonstration that (1) a selection procedure measuring a construct (e.g., honesty or assertiveness) is (2) important for successful job performance


• Albemarle Paper Co. v. Moody (U.S. 1975)• Facts; issue

• Section 703(h) and “professionally developed ability test”

• The employer’s “validation” of the testing program; the EEOC’s Guidelines

• The three defects in the validation study [pp. 221-22]

• Honesty, integrity, and personality tests [p. 222 note 1]


• Differential validation is prohibited, see Title VII Sec. 703(l) [p. 224, note 4]

• Sec. 703(h) and bona fide seniority systems; bona fide merit and piecework systems [p. 225-26]

Chapter 4: Interrelated Theories Of Discrimination

• Baylie v. Federal Reserve Bank of Chicago (7th Cir. 2007)

• Most litigation assertions are empirical and not axiomatic; factual propositions are reached by inductive not deductive means; all inferences are statistical [p. 231]

• Professional statistics and large numbers of events: patterns or result of chance? [p. 231]

• Probabilities are less helpful in individual cases [p. 231]

Baylie (cont.)• The preponderance of the evidence, more likely than

not threshold • Loss-of-chance damages and classwide litigation [p.

232]• The difference between average white worker and

average black worker promotion: result of chance or race? [p. 232]

• Holding

Chapter 4: The Relationship Between Systemic Disparate Treatment And Systemic Disparate ImpactSystemic Disparate Treatment (Pattern-And-Practice)

• Issue: employer’s intent to discriminate?

• Plaintiff ’s prima facie case: showing of underrepresentation

• Employer’s rebuttal/non-discriminatory explanation for underrepresentation

• Buttress/bolster evidence: individual cases

Systemic Disparate Impact (703(k))

• Issue: disparate impact unintentionally caused by employer practice(s)

• Plaintiffs’ prima facie case

• Employer’s job-related and business necessity defense

• Plaintiffs’ alternative employment practice and employer’s refusal to adopt the practice

EEOC v. Dial Corporation (8th Cir. 2006)

• The Work Tolerance Screen (WTS) test [p. 238]

• Women’s pass rate: 38%; men’s pass rate: 97%

• Dial’s work physiology expert; the EEOC’s industrial organization expert

• Lawsuit brought on behalf of 54 women not hired after taking the WTS• 24 did not complete the test

Dial Corp. (cont.)Pattern-And-Practice Claim (Jury Trial)• Was intentional discrimination the

employer’s standard operating procedure?

• Statistical disparity between men and women: 10 standard deviations [p. 239]

• Dial knew about the statistical difference and continued using the WTS; men and women had worked same job prior to use of the WTS

• Affirmed the jury’s verdict against Dial

Disparate Impact Claim (Judge Trial)

• Unintentional discrimination?

• Plaintiffs’ prima facie case

• EEOC expert on flawed content validation [pp. 238, 239]

• Dial’s flawed criterion validation [pp. 238, 239]

Chapter 4: The Relationship Between Systemic Disparate Treatment And Systemic Disparate Impact

• Page 240, note 1



Chapter 4: The Relationship Between Systemic Disparate Treatment And Systemic Disparate Impact

• Segar v. Smith [p. 242]• Pattern-and-practice case: plaintiff established

underrepresentation in employer’s work force• Employer’s rebuttal/explanation: residency requirement• Note: employer’s rebuttal makes out a prima facie case of

disparate impact [p. 243]• Employer can prevail in both pattern-and-practice

(rebuttal) and disparate impact (JR/BN defense) cases

Chapter 4: Reconciling Tension Between Disparate Treatment And Disparate Impact• Ricci v. DeStefano (U.S. 2009)

• Facts; minority pass rates were about 50% the pass rates for whites; issue [p. 250]

• Court’s premise: “The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense.” [p. 247]

• Court: the “City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.” [p. 247]• Justice Ginsburg: “the Court pretends . . .” [p. 254]

Ricci (cont.)• Consider Title VII Secs. 703(h), 703(l), and 703(j)

• Court adopts the constitutional “strong-basis-in-evidence” standard as a matter of statutory construction to resolve the conflict between Title VII Secs. 703(a) and 703(k) [p. 249]• Justice Ginsburg would adopt a “good cause to believe” standard [p.

255]

• Held: before avoiding or remedying disparate impact, an employer “must have a strong basis in evidence to believe that it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action” [p. 250]

Ricci (cont.)• Genuine dispute that the exams were job-related and

consistent with business necessity? [p. 250]• Equally valid, less discriminatory testing alternative? [p.

251]• “Fear of litigation alone cannot justify an employer’s

reliance on race to the detriment of individuals who passed the examination and qualified for promotion.” [p. 252]

• The city will avoid disparate-impact liability in light of the Court’s holding.

Ricci (cont.)

• Is Ricci a direct evidence or circumstantial evidence case?

• Does knowledge equal intentional discrimination? [p. 258, note 3; Feeney, p. 131]

• Briscoe v. City of New Haven [p. 260, note 9]

• The Court’s Weber/Johnson affirmative action doctrine [see p. 261, note 12]

chapter 3: systemic disparate impact discrimination title

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