Business Law: Disparate Intent & Impact

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What is Disparate Intent and Disparate Impact?

Simplified, Disparate Impact describes where an employer is not motivated by discriminatory intent; Title VII prohibits the employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class.

An article entitled, Disparate Impact under the Age Discrimination in Employment Act of 1967, brought up the question if the Supreme Court should approve disparate impact under the Age Discrimination in Employment Act of 1967? The article contained arguments and evidence, both pro and con, on the issue.

Justice Powell theorized in Connecticut v. Teal that disparate treatment and disparate impact are not separate claims, but rather methods of proving the single claim of discrimination. He offered no proof for this theorem, but analysis reveals that he was right. By examining disparate treatment and disparate impact in light of the elements of claim of discrimination, we find these methods of proof differ only in the ways they prove causation. Both prove that a protected characteristic was a cause of the employer's denial of an employment opportunity to the plaintiff; disparate treatment proves causation with evidence of intent, and disparate impact proves causation with evidence of effect. However, Justice Powell's theorem is no longer true of Title VII because the 1991 amendments allow for compensatory and punitive damages in cases of intentional discrimination; therefore, intent is now a material element of one of the claims under Title VII. But Justice Powell's theorem remains true of the Age Act, which was not amended in any relevant way. Thus, interpreted that disparate treatment and disparate impact have always been separate claims, distinguished by whether the defendant's intent is a material fact.

If Congress used the words because of age in their ordinary meaning, they comprehend two ideas of causation. One idea of causation is that a person's reason for action is a cause of the person's act; this idea corresponds to disparate treatment. The other idea of causation is that a proximate fact in the chain of facts that culminates in a reason for action is also a cause of the act; this idea corresponds to disparate impact. The legislative history of the Age Act makes clear that Congress was unaware of disparate impact in 1967; the Supreme Court's error in Griggs v. Duke Power Co. should not be repeated. No representative or senator spoke of disparate impact. The report to Congress on age discrimination by the Secretary of Labor contemplated only intentional discrimination. The origin of section 4(a)(2) shows it was directed at the disparate treatment of labor union members by their unions, not at disparate impact.

The legislative history of the defense in the RFOA clause shows it was meant to protect only job-related practices. The origin of the clause in an unsuccessful equal pay bill confirms this conclusion. The legislative history of the RFOA clause shows that Congress did not understand disparate impact. The true origin of the clause is a line of bills, dating from 1958, aimed at age discrimination; none of these bills contemplated disparate impact. The article concludes with arguments and evidence, based on the purposes of the Age Act, in favor of recognizing disparate impact.

Supreme Court Cases
The Supreme Court first described the disparate impact theory in 1971, in Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971): Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."

In 1989, the Supreme Court reduced the defendant's burden of proving business necessity to a burden of producing evidence of business justification. Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 657 (1989). However, the Civil Rights Act of 1991 overturned that portion of the Wards Cove decision.

Examples
Practices that may be subject to a disparate impact challenge include written tests, height and weight requirements, educational requirements, and subjective procedures, such as interviews.

If a protected class of job applicants under 6 feet sues the employer, will it likely get compensatory and punitive damages? Explain

Allocation of proof
Prima facie case
The plaintiff must prove, generally through statistical comparisons, that the challenged practice or selection device has a substantial adverse impact on a protected group. The defendant can criticize the statistical analysis or offer different statistics.

Business necessity
If the plaintiff establishes disparate impact, the employer must prove that the challenged practice is "job-related for the position in question and consistent with business necessity."

Alternative practice with lesser impact
Even if the employer proves business necessity, the plaintiff may still prevail by showing that the employer has refused to adopt an alternative employment practice which would satisfy the employer's legitimate interests without having a disparate impact on a protected class.

Selection Criteria
Scored tests
There are several methods of measuring adverse impact. One method is the EEOC's Uniform Guidelines on Employee Selection Criteria, which finds an adverse impact if members of a protected class are selected at a rates less than four fifths (80 percent) of ...