The Changing Face of Disparate Impact Analysis

• Author: by Captain Dean C Berry
• Pages: 01

1. INTRODUCTION

   To remove the barriers that prevented the United States from ex. isting a3 a "united and elasaless society,"' Congress enacted the Civil Rights Act of 1964 Equal employment opportunity falls under Title VI1 ofthiŝtatute.~

   4s interpreted by the Supreme Court, the goal of

   Title VI1 1s to eradicate those employment practices that "operate invidiously to discriminate on the basis of racial or other mpermm sible classification "'Over the years, courts have developed two prm. elpal methods of determining whether an employer has nolated this statutory proscription The first, disparate treatment analysis, considers whether the employer acted with discnmmatary intent and coveri a vide array of employment practices.' The second. disparate impact analysis, focuses an the systemic effect8 of employment prac. tices adopted wlthaut discriminatory intent but which still operate to exclude groups protected under Title VI1

   Although devised with the same general policy considerations m mmd, the two theories are quite different in their pristine forms and methods of application. Nowhere is this more apparent than in situ-

   thrEqvaiAccrisro.iusfiirAcf 38Lab L J 134,19878 lllemberaffhDbariofrheStare of Cahfornia,the U S SupremeCaurt. rho 0 S Caurtaf\lditari .Appeds and theU S Arm) Coun ofllilitary Review This article 11 b a d upon a thelia submitted in partial ss!ufaction of the reqmremenrs of the 37th Judge Adincafe Officer Graduate Cause

   Special Mesaageto CongresionC1\11 Rqhts Pub FapersofJ F Kennedi 221 8Feb

   tiana uhere Title VI1 plaintiffs attack the discnmmatory effects of an employer s subjective decisionmaking Although disparate treatment has traditionally applied to such cases. oier the past few years plaintiffs have also tned to use diaparate impact analysis to attack the same subjective processes Because the Supreme Court's disparate impact cases, beginning with Griggs L. Duhe Pouer Companj.' dealt only aith the effect of objectire measure^ of employment aptitude there was a lack afclear guidance as to whether this was an appropriate UEP of the theory and federal courts reached different decisions concerning the issue

   In Uotson j. Fort Uorth .Vattonal Bank the Supreme Court held in what war ostensibly an important victory far Title VI1 plainriffs, that the disparate impact theory first enunciated in Griggs applies to subjective employment practice8 '

   Whether this will be a long-term TIC- tory, however depends on future interpretations of the Court's opin-ion This 13 largely because the Justices. though deciding the mue of diaparate impact unanimously, differed eignihcanrly over the reapec-tive burdens of proof borne by the parties in such cases "'

   This article contends that in the wake of Watson disparate impact analys~theor) E in retreat as a theory of discrimmation Sanctmn~ n g an Ill-advised extension of the theory to subjective practices. the Court nau threatens the very foundations of Griggs, one of the mast important civil righta cases ever decided In sum, the plaintiffs' \IC- tory in Watson may spell long-term defeat for future Title VI1 plain-tlffS

   Part I1 of thie article diacudses the general prows~ona of Title \'I1 and how the Supreme Court devised separate theories of discrimma. tmn to fully enforce those provmons Part I11 explains and evaluate8 the nature of subjective employment practices and hau the two theones of discrimination apply to those practices This section also

   19891 DISPARATE IXPACT ANALYSIS

   discusses the split among the circuit courts of appeals regarding the use of disparate impact analysis to attack aubjeetive practices The Supreme Court's resolution of Watson E the subject of Part IV, and thia section outlines both the plurality opinion and the separate concurring opinion. Finally, Part V critiques Watson and argues against the Court's extension of disparate impact theory to Subjective prac. tices Included 1s a discumon of the implications that the opinion has for future disparate impact cases.

   11. BACKGROUND: TITLE VII, THE COURTS, AND THEORIES OF DISCRIMINATION A. STATUTORY PROVZSZONS AVD POLICY

   GOALS

   Title VII of the Civil Rights Act of 1964 makes it unlawful for any employer, emploj-ment agency. or labar organization engaged in an industry affecting commerce to discriminate in employment against any individual because ofrace, color, religion, sex, or national origin. It was the first major federal legislation prohibiting such discrimmation in private employment and, as such, was a watershed event m the country's civil rights movement The basic anti-discrimmation statement with regard to employers IS found in aection 103 of the statute, which promdea in pertinent part

   (a, It shall be an unlawful emplorment practice for an em- (1) to fail or refuse to hire or to discharge any Individual, or otherwise to discriminate against any mdimdual with respect to his compensation, terms, conditions, or privileges of employment because of auch Individual's race, color, religion, sex, or national ongin; or (2) to limit, segregate. or classify hia employees or applicantsfor employment Inanywa~.xhichwoulddepnveor tend

   to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color. religion, sex, or national

   DesDlte the aeemine dants of this lanrmane. the D~OYISLOILS

   ployer-

   orlgl"."

   of Title

7. in application. are often complex. confusing. and contradictory Pnar to its passage. the hill. which later became Title VII. went to the Senate floor without the standard committee report Thus courts tasked wrh interpreting and applying Title VI1 have done so without a key source of policy guidance LVhat legislative history x e do hare. largely gleaned from the floor debates and amendments. IS often ambiguous and pramptedatleastonecourt to observe that"the legisla-tire history of Title VI1 la in such a confused state that it 1s of mimmal

   Ne\ertheleai. courts have been able to discern the fundamental purposes of Title VI1 and that Congress intended to achieve equality of employment opportunity by protecting individuals from disadvantage based on certain immutable characteristics. Given Title VITs remedial purposes. and the background of deliberate dmnmmation that had plagued the countq for many years, Title VI1 1s often given a liberal appllcatm A clear hmit on thls approach. however. is that employers are not required to emplq unqualified workers :' >loreover. not all seemingly unfair or arbitrary actmns taken againat members of protected groups are ~llegal. the action must be linked to that protected status 15

   Title VI1 illegalitj- attaches only under specific circumstances as determined by the statute itself First the respondent in the case must be one covered under Title VI1 , I e an employer employment agencv. or labor arganmtm of sufficient size and engaging in interstate commerce1 Second, the act of drscnmmatmn at issue must he one recognized by Title VI1 Far example. theemployer S B C T ~

   value I" lt3 expllcatlon "'3

   must relate

   to hiring discharge. compensation. or orher terms and conditions of employment Third theTitleVIIpla,ntiffmust be a memherofagraup protected under Title VI1 Finally. the plamtiffmust allege that the

   "Sanchez, Standard Brand! lnc 431 F2d 455, 460 ,6th Clr lYi0,

   Conrirri dld not intend bu Tttle TI1 honeier to ruarrnree a ,ob to ~IPT/

   19891 DISPARATE IMPACT ANALYSIS

   employer's action was taken because of the former's membership ~n a protected group l6

   This final element. causation. generates the most difficult). dunng TitleVIIhtigation. While the first three elements aregenerally easy to satisfy, the crux of most disenmination case8 LE whether the ~ n - dwidual's protected statu motivated the employer's action This 1s

   often very difficult to prove. In response to the problem of proving causation and thus enforcing Title VIPs core purposes. courts have devised various theones of discrimmation. Depending on which theory 1s used, therange ofpotentialTitleVIIliabilitymay vary. The remaining portions of this section will describe the two primary theories of discrimination, disparate treatment and disparate mpact li

   2. THE DISPARATE TREAT.WEAYT MODEL

      When Congress enacted Title VI1 it was clear that employers could no longer intentionally select among applicants and employees on the basis of race. sex. and the other enumerated criteria This core policy gave rise to the disparate treatment theory of employment discrimmatmn As succinctly described by the Supreme Court in Teamsters 0.

      L'mted States.

      [dllsparate treatment. .is themast eas~lyunderstaod type of

      discrimmation. The employer simply treats some people 183s

      favorably than others because of their race, color. religion. sex, or national ongm Proof of discrimmatory motive 1s cntical, although it can in some situations be inferred from the mere fact of differences in treatment. Undoubtedly, disparate treatment was the most obvious evil Congress had m mind when It created Title VII.16

      While disparate treatment can be eaaly understood as a theory of employment discnmmatmn. actually proving an employer's discnminatory motive 1s more difficult Naturally, direct evidence of such a motive could be dispositive: far example, the plaintiff might have evidence ofanemployer'sexplieitstatementthathe or shewillnot hire nor promote blacks. The chanceofaplaintiffobta,ningsuchev,dence 1s remote, however. in light ofthe ~ocialopprobrium assmated wth such

      MILITARY LAN' REVIEW IYol. 125

      attitudes I s Accordingly. in deciding claims of disparate treatment. courts rely upon evidentiary models through which indirect e\idence

      13 analyzed with a view toward mfernng discriminatory treatment. The seminal case in developrng this model was McDonnelI Douglas Corp c Green.'u

      In .McDonnell Douglas the plaintiff. Green. was a black male who had been employed by McDonnell Douglas as a mechanic ahen the company laid him off dunng the course of a general work...