B. Issues Relating To Scope of Statutes

• Jurisdiction: New York

B. Issues Relating to Scope of Statutes

1. Disparate Impact Discrimination

The courts have interpreted Title VII to prohibit employer policies and actions that perpetuate the effects of past discrimination⁶² and the adverse impact of otherwise neutral personnel policies and actions.⁶³ For example, in Griggs, the Supreme Court struck down a requirement that an applicant for employment provide a high school diploma and successfully pass a general intelligence test. The Court found that neither requirement bore a demonstrable relationship to the successful performance of the jobs for which it was used, and that both tests had been adopted without a meaningful study of their relationship to job performance abilities. Reaching this conclusion, the Court relied heavily upon evidence that the two tests had excluded black employees from the work force. The Court specifically found that it was not necessary for a plaintiff to establish as part of his or her cause of action a discriminatory intent and, conversely, the employer's good intent or absence of discriminatory intent would not be a defense.⁶⁴ The Supreme Court later ruled that an employer's good faith fear of a disparate impact claim premised upon a neutral employment policy is not a legally sufficient basis to justify intentional disparate treatment discrimination under Title VII "unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute."⁶⁵

The Civil Rights Act of 1991 codified the prohibition against disparate-impact discrimination. Under the disparate-impact statute, a plaintiff can establish a prima facie case by presenting sufficient evidence that an employer uses "a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin."⁶⁶ An employer can defend against the claim by demonstrating that the practice is "job related for the position in question and consistent with business necessity." Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs.⁶⁷

2. Bona Fide Seniority Systems

Section 703(h) of Title VII specifically excepts from the reach of the statute differences in compensation or benefits "pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin."⁶⁸ This provision has precipitated judicial activity, especially to the extent that a seniority system perpetuates the effects of a past failure to hire members of a protected class. In Teamsters v. United States,⁶⁹ the Supreme Court held that under § 703(h), a bona fide departmental seniority system would be lawful, even when the employer had been proven to have engaged in pre-act discriminatory hiring and promotion practices and even though the seniority system perpetuated into the present the effects of pre-act discrimination. In United Air Lines, Inc. v. Evans,⁷⁰ the Court held that a seniority system does not independently violate Title VII simply because it perpetuates the effects of prior discriminatory acts, even if those acts occurred after the effective date of Title VII.⁷¹ The Supreme Court has upheld seniority systems where employers, recognizing the impact of past discrimination, have developed seniority systems that benefit members of minority groups.⁷² The Civil Rights Act of 1991 has lengthened the time in which a Title VII lawsuit challenging a seniority system must be filed.⁷³ Additionally, the Lilly Ledbetter Fair Pay Act of 2009 amended Title VII to extend the time to file a claim challenging discrimination in compensation under Title VII, which may be tied to seniority decisions.⁷⁴

The Supreme Court has ruled that the rights of other employees under a seniority system can form the lawful basis for an employer to refuse an employee's request for a religious accommodation under Title VII⁷⁵ or a reasonable accommodation based on a disability under the ADA.⁷⁶

3. Mixed Motivation

Both the courts and Congress have considered "mixed motive" cases in which the proof reveals that an employer had both discriminatory and nondiscriminatory reasons for taking an adverse employment action. In Price Waterhouse v. Hopkins,⁷⁷ the Supreme Court ruled that if one of the employer's reasons was legitimate, it was completely relieved of liability, even...