by Michael Fox
The issue of the allocation of burden of proof in employment discrimination cases has received considerable judicial attention, but most of it has been in disparate treatment cases. Yesterday, the 5th Circuit took on the issue in a disparate impact case. The neutral practice in this case (somewhat reminiscent of the underlying issue in the first disparate impact case, Griggs v. Duke Power) was a written test for storekeeper personnel. The real issue was not the the validity of the test, the Clerical Aptitude Battery, produced by the Edison Electronic Institute, since plaintiffs did not challenge its validity.
What was challenged was the company's raising of the cut-off score from 150 to 180, which both parties (and the Court) agreed resulted in a disparate impact on African American applicants for the positions. The company then introduced evidence of business necessity, which both the district court and 5th Circuit found was met by the following:
MP&L's expert demonstrated that an applicant with a score of 180 on the CAB has almost a 50% chance of developing into an above-average worker, and only a 31% chance of winding up in the bottom third of all workers. On the other hand, an applicant scoring 150 on the CAB is equally likely (at 39%) to develop into an above-average employee or to wind upin thee bottom third of all employees.
The dispute came next -- who had the burden of showing that there was no acceptable alternative to the cut-off point chosen by the company.
That requirement is contained in the revised version of Title VII passed in 1991 in response to the Supreme Court's decision in Ward's Cove. The revised language sets out the allocation of the burden of proof in this manner. An unlawful employment practice based on disparate impact is established when:
(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 . . . and consistent with business necessity; or (ii) the complaining party makes . . . [a] demonstration . . . [of an acceptable] alternative employment practice and the respondent refuses to adopt such alternative employment practice.
Since there was no evidence of an alternative, the answer to the question -- who had the burden -- was outcome determinative.
The district court ruled for the plaintiffs, placing the burden on the defendant. The 5th Circuit reverses and renders, holding that once the defendant has established a business necessity, it is the plaintiff's burden to establish an acceptable alternative practice. IBEW v. Mississippi Power & Light (5th Cir. 3/2/06) [pdf]. Noting the relative lack of attention to this issue, the Court found one other Circuit had held exactly the opposite, 13 years ago. Bradley v. Pizzaco of Neb., Inc., 7 F.3d 79 (8th Cir. 1993). But if you are counting, and the 5th Circuit was, two other Circuits, the 3rd and 11th are on its side in two decisions also decided in the 1990's.
Frequently circuit splits on key issues like the allocation of the burden of proof would be expected to reach the Supreme Court, and this seems to be one of those issues. Maybe this case. If not, given the relative dearth of such cases that are filed it may be awhile. And even when cases go to trial they seem to go at a snail's pace. Here the trial was in 1999 but the district court's opinion did not come till five years later, a lapse the Court noted neither party could explain and which it found "totally unacceptable.