disparate impact (unintentional discrimination) Flashcards
what is disparate impact
Employment practices that are FACIALLY NEUTRAL but fall more harshly on one group and cant be justified by business necessity
what is the key takeaway from griggs
Griggs challenged the inside transfer policy, which required employees who want to work in all but the company’s lowest paying department to obtain a minimum score on two aptitude tests in addition to having a high school education.
Griggs’ complaint alleged that the policy discriminated against African-American employees in violation of Title VII.
landmark case that developed disparate impact test
SCOTUS held that Duke Power’s aptitude tests violated Title VII because it prevented a disproportionate number of African-American employees from being hired by, and advancing within, the company.
what is the griggs disprate impact test (three)
- P must show D adopted a facially neutral policy or practice that has a discriminatory impact on protected group AND
- D can still prevail by establishing requirement is job related and consistent with a business necessity
(3)Even in the face of a business necessity, the employee can show that there are policies available that have less discriminatory impact but still serve the employer’s business needs.
what is the keytakeway from dothard (the female prison gaurd case)
Dianne was denied employment because she failed to meet the statutory requirements of:
Minimum 120-pound weight
Minimum 5 feet 2 inches height
added the third part to the griggs test
If the Board proves that the challenged requirements are job related, Dianne may then show that other selection devices without similar discriminatory effect would also serve the employer’s legitimate interest in efficient and trustworthy workmanship.
what is the ban the box movement
Prohibits employers from soliciting info about an individual’s conviction history on a job application
You can consider the conviction but it cant be an automatic dismissal of the application
Argument that allowing that is DISPARATE IMPACT on minority populations
what is the key takeaway from wards cove (the salmon case)
Wards Cove was a salmon cannery. Jobs at the cannery were of two types:
“Cannery Jobs”: unskilled positions filled primarily by nonwhites;
“Noncannery Jobs”: skilled positions filled primarily with whites.
Once employees present evidence of racial disparity among different classes of jobs, does the employer have to justify this disparity as a “business necessity” in order to avoid a “disparate impact” lawsuit under Title VII?
Its not enough to show that one job had a higher white population; thats not enough to show a prima facie case of disparate impact
You have to specify what the employment practice is; pointing out nepotism is not enough
how was the griggs framework refined after wards cove, as refined by the civil rights act
- Plaintiff must establish that an identified employment practice results in a disparate impact on a protected group;
2.The employer must prove that the employment practice is job related for the position in question and consistent with a business necessity (burden of persuasion); and
- Even if the employer satisfies its burden on the job-relatedness question, the plaintiff can still prevail by establishing that there is an alternative employment practice available with less discriminatory impact that still satisfies the employer’s business needs.
draw a flowchart for disprate impact framework
check
what is the diff between subjective vs objective criteria for a job
Objective criteria typically includes examinations, education requirements, work experience, or licensing requirements.
Subjective criteria typically includes interviews, performance appraisals not based on “hard” data; allows for use of discretion
what is the key takeaway from Watson
The Bank had not developed precise and formal criteria for evaluating candidates for these positions, but it rather relied on subjective judgment of supervisors who were acquainted with the candidates and the nature of the jobs to be filled
What evidentiary standards should be applied under Title VII in determining whether an employer’s practice of committing promotion decisions to the subjective discretion of supervisory employees has led to illegal discrimination?
Disparate impact can still apply to subjective criteria
The Court was persuaded that if disparate impact analysis was confined to objective decision-making, it’s landmark decision in Griggs would “become a dead letter.”
what is the bottom line defense
even if a particular practice has a disparate impact on the workforce, the employer should still prevail because it has made ADJUSTMENTS in an effort to alleviate the negative effects of the practice in question
what does the court in conneticut v teal do with the bottom line defense
rejects this defense in the context of disparate impact claims
what is the key take away from Connecticut v teal
Black employees passed at a lower rate than white employees
They sued
After the suit, the employer applied an affirmative action program
Argued that this bottom line result, more favorable to blacks than whites, should be adjudged to be a complete defense to the suit
The bottom line defense does not preclude employees from establishing a prima facie case, nor does it provide employer with a defense to such case
The defense does not preclude INDIVIDUAL employees from establishing a prima facie case
You cant change the fact that individuals are being discriminated against
under ricci, when is fear of a disparate impact claim is only a defense to disparate treatment
a defense to disparate treatment where there is a strong basis of evidence for that concern.
what is the fact pattern for disprate impact
a policy that applies accross the board or a test that applies to everyone
