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 Com mission (EEOC) provi des

uniform guidelines for employers to follow in administering promotional

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

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

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

majority group “will generally not be regarded by Federal enforcement

agencies as evidenc e of adverse imp act.”3

In a recent Sixth Circu it decision, Isabel v. City of Memphis,4 th e

employer hired an Industrial Organizational Psychol ogist, with the

agreement of the uni on, to develo p a promotional examination that would

be nondiscriminatory and whi ch wou ld pass the EEOC’s four-fifths rule.5

Although the promotional exam ination passed the four-fifths rule, the court

looked to al ternative statisti cal analyses—the t-test and z-score —and found

the promotional exa mination to be unlawfully discri minatory.6

As a result of this case, employers in the Sixth Circuit, like tho se in

several ot her circui ts, can no longer rely on the E EOC’s four-fi fths rule to

ensure that their tests are nondiscriminatory. Several circuit and lower

courts are looki ng to alternati ve analyses and a re giving litt le, if any,

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

judicial clarity o n the four-fifths rule. If the E EOC’s fo ur-fifths ru le 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.

1 29 C.F.R. §§ 1607.1–.16 (20 08).

2 Id. § 1607.4(D).

3 Id.

4 404 F.3d 404 (6th Cir. 200 5).

5 Id. at 408–09.

6 Id. at 409.

7 See infra Part III.B.

172 CAPITAL UNIV ERSITY LAW REVIEW [37:171

longer a reliable gu ideline for employers to turn to in determining whether

their promot ional examinat ions are discriminatory, then the four-fifths rule

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

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

establishing adverse i mpact, the courts should affo rd greater deference t o

the ru le. Either way, it is clear that t he cur rently ambiguous status of the

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

undermines the pu rpose of Title VII of the Civil Ri ghts Act of 1964.

II. BACKGROUND

A. Title VII’s Pro hibition of Empl oyment Discrimi nation in Promoti onal

Examinations

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

unlawful employment practice for an employ er . . . to discriminate against

any indivi dual with resp ect to hi s compensation , terms, conditio ns, or

privileges of employment because of such ind ividual’s race, color, religion,

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

scores, the Act state s the following :

It shall be an unlawful employmen t practice for a

respondent, in connectio n wi th the selection or referral of

applicants or candidates for employment or promotion, to

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

otherwise alter the res ults of, emp loyment related tests on

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

In enacting Title VII, Congress intended to “achieve equal ity of

employment opportunities and remove barriers that have operated in the

past to favor an identifiabl e group of white employees over other

employees.”10

Federal courts applyin g Tit le VII have es tablished that discrimi nation

in employment promot ion decisions falls wit hin the statute’s general

proscriptions.11 Therefore, e mployers cov ered under Title VII must ensure

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8 42 U.S.C. § 2000e-2(a) (2000).

9 Id. § 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).