Disparate Impact Claims
• Facially neutral selection devices and practices
▫ Evidence of intentional discrimination is not
needed
• (1) The prima facie case
• (2) The employer’s burden of proof of job
relatedness and business necessity
• (3) The pretext showing: show other tests or
selection devices serving the employer’s
legitimate interests
Disparate Impact Claims—Validation
Techniques
• (1) Criterion or empirical validation
▫ Compare test scores and employment criterion
▫ Concurrent or predictive
• (2) Content validation: test the content of the job
to be performed (e.g., typing test, math test)
• (3) Construct validation: identify a human trait
associated with successful job performance
Disparate Impact Claims
• The 80% Rule
▫ Selection procedure selecting groups at less than
80% of the selection rate of comparison group
constitutes a prima face case of disparate impact
• Pass rate, cutoff score
• Title VII Sec. 703(l): unlawful “to adjust the
scores of, use different cutoff scores for, or
otherwise alter the results of, employment
related tests on the basis of race, color, religion,
sex, or national origin”
The 80% Rule
• Identify the group with the highest pass rate
• E.g., racial group A, pass rate: 100%
▫ Other racial groups with pass rates less than 80%:
prima facie case of disparate impact
• Highest group pass rate 70%
▫ Group pass rates less than 56%: prima facie
disparate impact
Disparate Impact Claims
• Washington v. Davis (U.S. 1976)
• Test 21
• Held, positive relationship between Test 21 and
training course performance
• Dissent: no evidence that Test 21 is predictive or
or significantly correlated with job performance
Disparate Impact Claims—Title VII Sec.
703(k)
• Step 1 (Sec. 703(k)(1)(A)(i)): Complainant’s
burden of proof
• Demonstrate “that a respondent uses a
particular employment practice that causes a
disparate impact on the basis of race, color,
religion, sex, or national origin . . .”
Disparate Impact Claims—Title VII Sec.
703(k)
• Sec. 703(k)(1)(B)(i)
• Complainant “shall demonstrate that each
particular challenged employment practice
causes a disparate impact . . .”
• Complainant may demonstrate to the court that
the elements of the decision making process
cannot be separated for analysis
Disparate Impact Claims—Title Sec.
703(k)
• Step 2 (Sec. 703(k)(1)(A)(i)): Employer’s burden
of proof
• “[D]emonstrate that the challenged practice is
job related for the position in question and
consistent with business necessity.”
Disparate Impact Claims—Title VII Sec.
703(k)
• Step 3 (Sec. 703(k)(1)(A)(ii)): Complainant
demonstrates “an alternative employment
practice and the respondent refuses to adopt
such alternative employment practice.”
Disparate Impact Claims
• Connecticut v. Teal (U.S. 1982)
▫ Facts
• Sec. 703(a)(2); Griggs; Albemarle
• Sec. 703(h): job-related tests
• Held: a nondiscriminatory “bottom line” does
not preclude the establishment of a prima facie
case, and does not provide an employer with a
defense in a disparate-impact case
Teal (cont.)
• Justice Powell’s four-Justice dissent
• “There can be no violation of Title VII on the
basis of disparate impact in the absence of
disparate impact on a group.”
• Court’s decision may force employers to
eliminate tests or rely on expensive tests or
adopt quota hiring
Disparate Impact Claims
• Ricci v. DeStefano (U.S. 2009) (5-4)
▫ Facts; issue
• Premise: “The City’s actions would violate the
disparate-treatment prohibition of Title VII
absent some valid defense.”
• “The City rejected the test results solely because
the higher scoring candidates were white.”
Ricci (cont.)
• The “strong-basis-in-evidence” standard
▫ Imported from Court’s equal protection
jurisprudence
• The “City would avoid disparate-impact liability
based on the strong basis in evidence that, had it
not certified the results, it would have been
subject to disparate-impact liability.”
Ricci (cont.)
• Prima facie case? (80% rule)
• Job-related and consistent with business
necessity?
• Equally valid, less discriminatory alternative
rejected by the City?
Ricci (cont.)
• Court: no City liability in any subsequent
disparate-impact suit challenging the test
• Suit by Michael Briscoe was filed; settled in April
2014 for $285,000 and promotion of Briscoe to
supervision of city’s 911 call center
Ricci (cont.)
• Justice Scalia: Court’s opinion “merely
postpones the evil day on which the Court will
have to confront” whether Sec. 703(k) is
consistent with the Equal Protection Clause
• Justice Ginsburg argued for “good cause”
defense; remand for application of new rule
Disparate Impact Claims
• New York City Transit Auth. v. Beazer (U.S.
1979)
▫ Facts; issue
• Rule 11(b)
• Prima facie case?
▫ Racial composition of employees suspected of
using methadone? Dismissed for using
methadone? Public and private methadone
maintenance programs?
• Is Rule 11(b) job-related?
Disparate Treatment—Individual Claims
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Title VII Sec. 703(a)(1)
Direct evidence
Circumstantial evidence (PFC-LNR-pretext)
Mixed-motive cases (employer motivated by
both legitimate and illegitimate reasons)
▫ Title VII Secs. 701(m), 703(m), 706(g)(2)(B)
• After-acquired evidence cases
Disparate Treatment—Systemic
Discrimination
• Pattern-or-practice cases
▫ Prima facie case; employer rebuttal
• Group statistics and observed
underrepresentations in employer’s work force
• Relevant labor market issue
• Individual buttress cases
Disparate Impact Claims
• Title VII Secs. 703(a)(2), 703(k)
▫ Facially neutral employment practices; proof of
intentional discrimination is not required
• Plaintiff’s prima facie case
▫ Statistics; 80% rule
• Employer’s job-related/business necessity
defense
▫ No “bottom line” defense
• Plaintiff’s pretext (alternative practice) showing