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).
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