Basic Process in Adverse Impact Cases
1. Plaintiff demonstration of prima facie case:
•
Unequal impact of the practice in question
•
The practice has unequal impact on the groups in question
•
The group(s) in question is (are) not represented
adequately in the organization's workforce
2. Defendant:
•
A legitimate nondiscriminatory reason exists for the
rejection of the person (Business necessity; Job relatedness)
3. Plaintiff:
•
A less discriminatory alternative and reasonable practice
exists that could be used by the company
Basic factors for evidence of
discrimination
• Impact on actual applicants (“Flow” statistics)
• Impact on potential applicants
• Representation regarding a company’s workforce (“Stock”
statistics) Most commonly used comparison in EEO cases
Basically, this is a comparison between 2 numbers (often
percentages)
• % reflective of the company’s work force
• % indicative of the relevant population or labor force
Some Key Issues/Questions
What determines the number to be used indicating the labor market?
• What geographical area is to be used? (e.g., a city, region, entire
nation)
• Who is counted in the geographical area? (e.g., everyone in the
population, only those with certain qualifications)
Who is counted within the company?
• Full-time workers only or do part-time employees get counted?
• Employees in all job classes, a categorization of certain job
classes, or only one job class?
• Employees in just one department, the entire facility, or
facilities across the nation?
Teamsters v. United States Summary
The federal government sued a nationwide trucking company and its union for
discrimination against black and Hispanic Americans in hiring intercity truck
drivers. The government claimed that these minorities were relegated to lowerpaying driving jobs by the existence of separate units (local unions) for intercity
and local drivers. Protection from layoff and competition for vacancies were
determined by bargaining union seniority, so that intercity runs were given to the
applicant who had been an intercity driver the longest. To support its argument,
the government presented the following statistics on the company work force:
White
Black & Hispanic
____________________________________________________
Intercity drivers
1802
13
Local drivers
1117
167
_____________________________________________________
Also, the government introduced population statistics that showed further
disparities. For instance, some company terminals in areas of substantial black
population had no black intercity drivers.
Teamsters v. United States (key findings)
Representation statistics as evidence of a prima facie case
“Statistics showing racial or ethnic imbalance are probative in a case such as this
one only because such imbalance is often a telltale sign of purposeful
discrimination; absent explanation, it is ordinarily to be expected that
nondiscriminatory hiring practices will in time result in a work force more or
less representative of the racial and ethnic composition of the population in the
community from which employees are hired. Evidence of long lasting and gross
disparity between the composition of a work force and that of the general
population thus may be significant even though 703 (j) makes clear that Title
VII imposes no requirement that a work force mirror the general population."
Statistics regarding representation can establish a prima
facie case and the appropriate labor market may
sometimes be the total population
Teamsters (key findings cont.)
Degree of disparity between workforce & population statistics
"At best, these attacks go only to the accuracy of the comparison between the
composition of the company's work force at various terminals and the general
population of the surrounding communities. They detract little from the
Government's further showing that Negroes and Spanish-surnamed Americans who
were hired were overwhelmingly excluded from line-driver jobs. Such employees were
willing to work, had access to the terminal, were healthy and of working age, and
often were at least sufficiently qualified to hold city-driver jobs. Yet they became line
drivers with far less frequency than whites. See, e. g., Pretrial Stipulation 14,
summarized in 517 F.2d, at 312 n. 24. Of 2,919 whites who held driving jobs in 1971,
1,802 (62%) were line drivers and 1,117 (38%) were city drivers; of 180 Negroes and
Spanish-surnamed Americans who held driving jobs, 13 (7%) were line drivers and
167 (93%) were city drivers. I n any event, fine tuning of the statistics could not have
obscured the glaring absence of minority line drivers. As the Court of Appeals
remarked, the company's inability to rebut the inference of discrimination came not
from a misuse of statistics but from "the inexorable zero."
In cases where the differences are vast, technical issues regarding
statistical analyses/comparisons may be irrelevant
Hazelwood v. United States (Summary)
In 1973, the federal government sued a suburban school district for
discriminating against black schoolteachers in its hiring practices. The
government pointed out that although the U.S. census showed that 15.4 percent
of the schoolteachers living in the metropolitan area were black, only 1.8% of
the schoolteachers employed by the district were black. The school district
replied that there were relatively few black schoolteachers in the district
because there were few black pupils there. Besides, the metropolitan area
included a center city with a relatively large black population and a school
district that had made efforts to maintain a 50% black teaching staff. In light of
that competition, the suburban district asserted that it was unreasonable to
expect it to hire black teachers in proportion to their availability in the total
metropolitan area. Excluding the center city, only 5.7% of the teachers living
in the metropolitan area were black. The school district also stated that it was
unfair to compare those population percentages with the percentages for
teachers employed by the school district because many of the teachers
employed by the district were hired before Title VII was made applicable to the
school district (May 24, 1972). Since then, 3.7 percent of the teachers hired
were black.
Summary of the statistics used in Hazelwood
Total teachers hired by the district .........................
Total # of teachers hired since 3/24/72 .................
1231
405
% of Black teachers hired by the district ...............
1.8%
% Blacks hired since 3/24/72 ..............................
3.7%
% Black teachers living in metropolitan area ........ 15.4%
% Black teachers in area living outside center city .. 5.7%
% Black pupils enrolled in school district ............... 2.3%
Key Findings From Hazelwood School District v. U.S.
Relevant Labor Market:
In determining [433 U.S. 299, 312] which of the two figures - or, very possibly,
what intermediate figure - provides the most accurate basis for comparison to the
hiring figures at Hazelwood, it will be necessary to evaluate such considerations
as (i) whether the racially based hiring policies of the St. Louis City School
District were in effect as far back as 1970, the year in which the census figures
were taken; (ii) to what extent those policies have changed the racial composition
of that district's teaching staff from what it would otherwise have been; (iii) to
what extent St. Louis' recruitment policies have diverted to the city, teachers who
might otherwise have applied to Hazelwood; (iv) to what extent Negro teachers
employed by the city would prefer employment in other districts such as
Hazelwood; and (v) what the experience in other school districts in St. Louis
County indicates about the validity of excluding the City School District from
the relevant labor market.
Conceptually, the labor market includes those people who are
willing and able to perform a given job. In practice, data often
come from census and/or Department of Labor statistics.
Key Findings From Hazelwood School District v. U.S. (cont.)
Time Frame Issue:
Racial discrimination by public employers was not made illegal under Title VII
until March 24, 1972. A public employer who from that date forward made all its
employment decisions in a wholly nondiscriminatory way would not violate Title
VII even if it had formerly maintained an all-white work force by purposefully
excluding Negroes.15 For this reason, [433 U.S. 299, 310] the Court cautioned
in the Teamsters opinion that once a prima facie case has been established by
statistical work-force disparities, the employer must be given an opportunity to
show that "the claimed discriminatory pattern is a product of pre-Act hiring
rather than unlawful post-Act discrimination."
Furnco Quotes
• “Title VII … does not impose a duty to adopt a hiring
procedure that maximizes hiring of minority employees”
• “It is clear beyond cavil that the obligation imposed by Title
VII is to provide an equal opportunity for each applicant
regardless of race, without regard to whether members of the
applicant’s race are already proportionately represented in the
work force.”
• “Proof that his work force was racially balanced or that it
contained a disproportionately high percentage of minority
employees in not wholly irrelevant on the issue of intent when
that issue is yet to be decided.”