Conflicting Approaches to Disparate Impact Claims in the Tenth Circuit
| Publication year | 1985 |
| Pages | 1636 |
| Citation | Vol. 14 No. 9 Pg. 1636 |
1985, September, Pg. 1636. Conflicting Approaches to Disparate Impact Claims in the Tenth Circuit
Title VII of the Civil Rights Act of 1964(fn1) and the Age Discrimination in Employment Act of 1967(fn2) permit challenges to "facially neutral" employment policies or practices that affect protected groups of employees more harshly because of immutable characteristics.(fn3) Such challenges, in which the employer's intent to discriminate is not at issue, are referred to as "disparate impact" employment discrimination claims.
Impact claims stand in contrast to the more common "disparate treatment" claim, in which the plaintiff alleges that he or she has been the victim of intentional employment discrimination.(fn4) Two recent decisions of the Tenth Circuit Court of Appeals espouse conflicting approaches to the disparate impact model of discrimination claims.
In Heward v. Western Electric Co.,(fn5) the plaintiff had been employed as a local installation manager for the defendant's subsidiary, American Telephone & Telegraph Company ("AT&T"). During his thirty-nine years of employment, the plaintiff had moved his family nineteen times in order to accept various job transfer opportunities. In 1980, the plaintiff was terminated through forced retirement after refusing a job transfer which would have required his relocation from Salt Lake City to Denver. The plaintiff declined the transfer because his wife was in poor health. The plaintiff attempted to discover information on a nationwide basis concerning other AT&T employees who had rejected transfer opportunities. However, the trial court refused to allow such discovery.
After a jury rejected his claim of intentional age discrimination, the plaintiff appealed, alleging in part that the district court had abused its discretion by limiting the scope of plaintiff's discovery. In affirming the trial court's decision, the Tenth Circuit Court of Appeals noted that the discovery sought would be primarily relevant to prove a claim of disparate impact, and that the plaintiff had conceded in the trial court that his discrimination claim was based on the disparate treatment model.
In light of the U.S. Supreme Court's decision in Furnco Construction Corp. v. Waters,(fn6) the Tenth Circuit rejected Heward's argument on appeal that subjective employment decisions or practices may be challenged under both the disparate treatment and disparate impact models. The court held that "without further evidence a policy allowing subjective employment decisions may not be examined using a disparate impact analysis."(fn7) Accordingly, the plaintiff was not permitted to add the disparate impact theory as part of his challenge against the defendant's subjective decision to terminate his employment.
After Heward, it seemed clear that only facially neutral employment practices, such as height and weight requirements or standardized tests, could be challenged...
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