The Flavor of the Season: Disparate Impact?
Posted
3:08 PM
by Michael Fox
In times past, one could go a fairly long time without much discussion of disparate impact, but two posts in other blogs today caught my attention. First, Paul Secunda has a post about new scholarship Seiner and Gutman on the New Disparate Impact.
Professor Secunda calls it a "very worthwhile read among the increasing literature on this watershed case [Ricci v. DeStefano (S.Ct. 6/29/09)]. He quotes the abstract of the article in full, but the last paragraph and one-half is enough to give you a flavor and a tease:
Then my fellow Texan, Russell Cawyer, who blogs at Texas Employment Law, had this note, Is the EEOC Getting Interested in Disparate Impact Claims? It was two informal discussion letters from the EEOC, one on the subject of requiring a master's degree and the other on "credit checks" as they relate to the possibility of a claim for disparate impact that caught his attention.... After Ricci, however, in a broad category of disparate-impact cases liability now turns on what the employer knew when it took the challenged action. If the employer had no reason to think that the practice would have an unlawful disparate impact, it is immune from liability for its past actions.
This is a dramatic development, and it suggests that the Court sees disparate impact as not fundamentally different from intentional discrimination. Beyond its doctrinal importance for disparate-impact claims—which itself is considerable—the Ricci affirmative defense reflects an entirely new direction for this area of law. In this Article, we parse the language of Ricci to derive the new affirmative defense. We explain its significance for disparate-impact theory and discuss the limited safe harbor it has created for employers. We also situate the new defense within the broader context of federal employment-discrimination law, including other affirmative defenses that the Court has created for policy reasons. We thus explain how Ricci heralds a new disparate impact.
Like any field of endeavor, there tend to be trends, hot buttons, flavors of the week,month etc. in the employment law field. Is it disparate impact's turn? Maybe you should think of it as being on a trip to Ben and Jerry's -- it's too early to order, but not too early to think about what other scoop you want to go with your
Labels: discrimination, disparate impact
Disparate Impact, Part Deux - When It Works
Dial's physiology expert testified that the WTS was highly representative of the actions required by the job, and Dial claims that his testimony was not rebutted by EEOC which had no physiology witness. The district court was persuaded by EEOC's expert in industrial organization and his testimony "that a crucial aspect of the WTS is more difficult than the sausage making jobs themselves" and that the average applicant had to perform four times as many lifts as current employees and had no rest breaks. There was also evidence that in a testing environment where hiring is contingent upon test performance, applicants tend to work as fast as possible during the test in order to outperform the competition. Labels: disparate impact
Disparate Impact - Not An Easy Path
Labels: disparate impact
Posted
4:52 PM
by Michael Fox
After writing less than 12 hours ago about how disparate impact cases are both difficult and "not every day fare," I am of course shown up by a decision affirming such a finding of disparate impact from another circuit court.
In EEOC v. Dial Corp. (8th Cir. 11/17/06) [pdf] the Court affirmed not only a finding of pattern and practice intentional discrimination, but also a disparate impact finding based on a weight lifting test for employees whose duties involved carrying and stacking boxes of sausage all day long. The test was found to be discriminatory to women, who went from holding almost half the jobs pre-test, to less than 8% of female applicants being hired in the last year the test was in use. In terms of magnitude, it was almost 10 standard deviations, far surpassing the two to three which is the key for establishing a disparate impact.
The test had been put in place to cut a high injury rate and it seemed to have had that effect. Still, the Court affirmed the lower court's finding that Dial Corp. had failed in showing a business necessity for the test. As often happens this boiled down to a battle of the experts:
The 8th Circuit also upheld the district court's finding that in addition to back pay, the employer was liable for the amount of premiums paid for healthcare insurance the applicants would have been entitled to if they had been hired. The employer had argued that it should only be liable for actual medical expenses.
The Court upheld back pay for the entire period from application to the time of trial, notwithstanding the employer's evidence that based on the high rate of turnover it was unlikley that the applicants would have been employed for the entire period.
And even the one small victory for the employer, denial of back pay to an employee who had a felony conviction, was sent back for further factual finding.
Posted
6:23 AM
by Michael Fox
That may be the lesson learned from yesterday's decision in yet another battle over police promotions in Chicago. Adams v. City of Chicago (7th Cir. 11/16/06) [pdf]. The specific fight was over a 1994 examination for promotion to sergeant that was used for promotions in February, 1997. Although all parties conceded that the test did have a disparate impact on minorities, plaintiffs were unsuccessful in finding the use discriminatory, at least according to the 2-1 decision.
The McDonnell Douglas equivalent test for a disparate impact case requires a finding of disparate impact which shifts the burden to the defendant to show that the practice was job related and consistent with business necessity. Just as Chicago conceded there was disparate impact, the officers challenging the practice conceded use of the test was job related and consistent with business necessity.
The success of the case depended on the officers' ability to meet their final burden, that "there was another available method of evaluation which was equally valid and less discriminatory that the employer refused to use.” Although finding that the lower court improperly rejected evidence of Chicago's practices after it stopped use of the test, the majority still felt even with that evidence, the plaintiffs' fell short -- failing to prove Chicago was presented with an equivalent method that it failed to implement.
Fully understanding the decision requires more study of the Chicago police promotion issue than I care to do, although the history of litigation involving at least 9 reported federal decisions over Chicago police department promotions (not counting Adams), certainly would provide some easily available materials. Nevertheless, for those involved in disparate impact case, which frankly are not your every day fare, this case warrants a close reading.
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