Disparate impact
Qinglan Bai
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Employment discrimination
 Employment discrimination: discrimination in hiring,
promotion, job assignment, termination, and compensation.
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Laws often prohibit discrimination on the basis of:
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Race or color
Ethnicity or national origin
Sex or gender
Pregnancy
Religion or creed
Political affiliation
Language abilities
Citizenship
Disability or medical condition
Age…
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Duckling--Racial segregation is one of th
serious problems in our world.
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US Civil Rights Act of 1964
 The Civil Rights Act of 1964 (enacted July 2,
1964) was a landmark piece of legislation in the
United States that outlawed major forms of
discrimination against blacks and women,
including racial segregation.
 Title VII of the Act, prohibits discrimination by
covered employers on the basis of race, color,
religion, sex or national origin.
 The bill was called for by President John F.
Kennedy in his civil rights speech of June 11, 1963
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§ 4 . Intentional and Unintentional
Discrimination
 “Disparate-Treatment”
Discrimination
 Plaintiff is a member of a
protected group
 Plaintiff suffered an adverse
employment action
 Plaintiff is otherwise qualified
to hold the position
(minimally)
 the Defendant's actions were
motivated by discriminatory
intent.
 “Disparate Impact”
Discrimination.
 a disproportionate
“adverse impact”,
caused by
 an employment practice
or policy ,on
 members of the
protected class, without
 "business necessity"
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 A facially neutral employment practice is
one that does not appear to be
discriminatory on its face; rather it is one
that is discriminatory in its effect.
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 adverse impact:
 substantially different rate of selection in hiring,
promotion, or other employment decision which
works to the disadvantage of members of a race
or sex group.
 Protected class:
 The term describes characteristics or factors
which can not be targeted for discrimination and
harassment, such as race, gender, age.
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Litigation Process
Disparate treatment
Disparate impact
Show intent?
Yes
No
Prima facie
case
Disparate treatment - intentional
practice
Disparate impact - effect of
practice
Employer’s
rebuttal
Nondiscriminatory reason(s) for
practice or show BFOQ
Practice job-related and
consistent with business
necessity
Plaintiff’s
rebuttal
Reason is a pretext for
discrimination
Practice not job-related; employer
will not adopt practice causing
less adverse impact
Remedies
Consent decree; compensatory
and punitive damages
Consent decree; equitable relief,
i.e. back pay
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 BFOQ :a bona fide occupational
qualification is a quality that employers are
allowed to consider when making decisions
on the hiring and retention of employees
 – qualities that when considered in other
contexts would constitute
discrimination .Such qualifications must be
listed in the employment offering.
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 IRAC (pronounced EYE-rack) generally
stands for: Issue, Relevant law,
Application to facts, and Conclusion
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Griggs v. Duke Power Co., (1971)
Fact1
 In the 1950s Duke Power's Dan River plant had a
policy that African-Americans were allowed to
work only in its Labor department, which
constituted the lowest-paying positions in the
company.
 In 1955 the company added the requirement of a
high school diploma for its higher paid jobs.
 After the passage of the Civil Rights Act the
company removed its racial restriction, but
retained the high school diploma requirement, and
added the requirement of an IQ test as well as the
diploma.
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Griggs v. Duke Power Co., (1971)
Fact2
 African American applicants, less likely to
hold a high school diploma and averaging
lower scores on the IQ tests, were selected
at a much lower rate for these positions
compared to white candidates.
 It was found that white people who had
been working at the firm for some time, but
met neither of the requirements, performed
their jobs as well as those that did meet the
requirements.
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 Issue: Whether, in a Title VII case, the
giving of general intelligence tests and
requiring a high school diploma for
employment are violations of equal
protection if the practical result is to
statistically exclude more blacks than whites,
and the tests do not have a demonstrated
predictive affect on job performance?
 Holding: Yes
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 Reasoning: Artificial and unnecessary barriers to
employment operate invidiously to discriminate
against blacks. The motive of good or bad intent
does not change the fact that the practical affect of
the employment standards was discrimination
against blacks. Congress intended to prevent the
consequences of racially biased employment
screens, not just the motivation behind them.
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Griggs v. Duke Power Co., (1971)
Decision
 if such tests disparately impact ethnic minority groups,
businesses must demonstrate that such tests are
"reasonably related" to the job for which the test is required.
 employment tests (when used as a decisive factor in
employment decisions) are prohibited when they are not a
"reasonable measure of job performance," regardless of
the absence of actual intent to discriminate.
 Since the aptitude tests involved, and the high school
diploma requirement, were broad-based and not directly
related to the jobs performed, Duke Power's employee
transfer procedure was found by the Court to be in violation
of the Civil Rights Act.
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Ricci v. DeStefano (2009) Facts
 City’s Fire Department offered promotional
exams to fill lieutenant and captain positions.
 City regulations required that once the test
results were certified, the fire department
had to promote the top 3 scorers on each
exam. No blacks would be promoted under
this scenario.
 The City declined to certify the results out of
a concern that the tests were possibly
racially biased.
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 written and oral
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examinations
 Captain exam: the top 20
9 scorers included 7 15
whites and 2 Hispanics.
 Lieutenant exam : all 10
the top 10 scorers
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were white.
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Captain
Lieutena
nt
whites
hispanics
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Ricci v. DeStefano (Proceedings Below)
 Seventeen white firefighters and one Hispanic firefighter
sued the City alleging that by failing to certify the results,
the City violated Title VII’s prohibition against disparatetreatment based on race and the Equal Protection Clause
of the 14th Amendment.
 Frank Ricci, the lead plaintiff in the case, is a dyslexic who practiced
with flash cards and hired a tutor to help him study for the test.
 The District Court granted the City’s motion for summary
judgment, accepting its argument that certifying the results
would cause it to make promotional decisions based on a
test that had a racially disparate impact.
 A panel of the Second Circuit Court of Appeals including
now Supreme Court Justice Sotomayor affirmed with
limited analysis.
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 Issue: Whether fear of litigation alone can
justify an employer’s reliance on race to the
detriment of individuals who passed the
examinations and qualified for promotions?
 Holding: No.
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 Listen to the story:
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Ricci v. DeStefano (Decision)
 The Supreme Court reversed, holding that “[f]ear of
litigation alone cannot justify an employer’s reliance on
race to the detriment of individuals who passed the
examinations and qualified for promotions….”
 In reconciling the competing Title VII provisions prohibiting
both disparate treatment and disparate impact, the Court
ruled that “before an employer can engage in intentional
discrimination for the asserted purpose of avoiding or
remedying an unintentional disparate impact, the employer
must have a strong basis in evidence to believe it will be
subject to disparate-impact liability if it fails to take the raceconscious, discriminatory action.”
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Ricci v. DeStefano (Decision Con’t.)
 The Court explained the City would be liable under
a disparate-impact theory only if the examinations
were not job-related and consistent with business
necessity or if the City could have adopted an
equally
effective
and
less
discriminatory
alternative for selecting candidates who should be
promoted.
 A mere showing of a significant statistical disparity
does not meet this “strong basis in evidence
standard.”
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 statistical data alone →show discriminatory
effect of policies?
 Enough
 Not enough
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 “Intent” proof burden:
 the burden was on the plaintiff
 the source of the unequal representation of races in the
work force was due to the particular policy in issue, and
 not to other causes that are beyond the control of the
employer.
 Dissent: The majority position would make it too
difficult for legitimate claims to overcome the
burden of proof.
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