The Need for Legislative or Judicial Clarity on the Four-Fifths Rule and How Employers in the Sixth Circuit Can Survive the Ambiguity

• Author: Scott W. McKinley
• Position: J.D. Candidate, May 2009, from Capital University Law School
• Pages: 171-200

THE NEED FOR LEGISLATIVE OR JUDICIAL CLARITY

ON THE FOUR-FIFTHS RULE AND HOW EMPLOYERS IN

THE SIXTH CIRCUIT CAN SURVIVE THE AMBIGUITY

SCOTT W. MCKINLEY*

I. INTRODUCTION

The Equal Employment Opportunity Commission (EEOC) provides

uniform guidelines for employersto follow in administering promotional

examinations.1 One such guideline is known as the “four-fifths rule.”2

The four-fifths rule essentially states that a selection rate for any protected

class under Title VII which is greater than four-fifths of the rate of the

majority group “will generally not be regarded by Federal enforcement

agencies as evidenc e of adverse impact.”3

In a recent Sixth Circuit decision, Isabel v. City of Memphis,4 the

employer hired an Industrial Organizational Psychologist, with the

agreement of the union, to develop a promotional examination that would

be nondiscriminatory and which would pass the EEOC’s four-fifths rule.5

Although the promotional examination passed the four-fifths rule, the court

looked to alternative statistical analyses—the t-test and z-score—and found

the promotional exa mination to be unlawfully discriminatory.6

As a result of this case, employersin the SixthCircuit, like those in

several other circuits, can no longer rely on the EEOC’s four-fifths rule to

ensure that their tests are nondiscriminatory. Several circuit and lower

courts are looking to alternative analyses and are giving little, if any,

deference to the four-fifths rule.7 This Comment is a call for legislative or

judicial clarity on the four-fifths rule. If the EEOC’s four-fifths rule is no

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Copyright © 2008, Scott W. McKinley.

* J.D. Candidate, May 20 09, from Capital University Law School. I would like to

thank Pro fessor Floyd Weatherspoon, Rick Leslie, and M4gan Elask y for their inspiration

and assistance.

129 C.F.R. §§ 1607.1–.16 (20 08).

2Id. § 1607.4(D).

3Id.

4404 F.3d 404 (6th Cir. 200 5).

5Id. at 408–09.

6Id. at 409.

7See infra Part III.B.

172CAPITAL UNIVERSITY LAW REVIEW [37:171

longer a reliable guideline for employers to turn to in determining whether

their promotional examinations are discriminatory, then the four-fifths rule

should be replaced with a more accurate guideline. On the other hand, if

the four-fifths rule is determined to be the most accurate guideline in

establishing adverse impact, the courts should affo rd greater deference to

the rule. Either way, it is clear that the currently ambiguous status of the

four-fifths rule has a negative impact on employers and employees, and it

undermines the purpose of Title VII of the Civil Rights Act of 1964.

II. BACKGROUND

A. Title VII’s Prohibition of Employment Discrimination in Promotional

Examinations

Title VII of the Civil Rights Act of 1964 states that“[i]t shall be an

unlawful employment practice for an employer . . . to discriminate against

any individual with respect to his compensation, terms, conditions, or

privileges of employment because of such individual’s race, color, religion,

sex, or national origin . . . .”8 Furthermore, in regards to the use of test

scores, the Act states the following:

It shall be an unlawful employment practice for a

respondent, in connection with the selection or referral of

applicants or candidates for employment or promotion, to

adjust the scores of, use dif ferent cutoff scores for, or

otherwise alter the results of, employment related tests on

the basis of race, color, religion, sex, or national origin.9

In enacting Title VII, Congress intended to “achieve equality of

employment opportunities and remove barriers that have operated in the

past tofavor an identifiable group of white employees over other

employees.”10

Federal courts applying Title VII have established that discrimination

in employment promotion decisions falls within the statute’s general

proscriptions.11 Therefore, employers covered under Title VII must ensure

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8 42 U.S.C. § 2000e-2(a) (2000).

9Id. §2000e-2(l).

10 Griggs v. Duke Power Co., 401 U.S. 424, 429–30 (1971).

11 48 AM. JUR. 3D PROOF OF FACTS 75, 86–87 (1998).