Class Claims of Disparate Impact

Author:George Rutherglen

Unlike class claims of disparate treatment, class claims of disparatimpact do not require proof of intentional discrimination. Thesclaims require instead only proof of discriminatory effects. Exactlwhat this means-how it is proved by the plaintiff and how it marebutted by the defendant-has been a source of controversy since thSupreme Court developed the theory of disparate impact in Griggs v. Duke Power Co.[110] Several decisions elaborated on the theory but lefthe elements of the plaintiffs case and the defendant's rebuttal uncertain. The Supreme Court resolved these uncertainties in favor of thdefendants in Wards Cove Packing Co. v. Atonio,[111] only to have its decision largely overruled by Congress when it codified the theory odisparate impact in the Civil Rights Act of 1991.[112] Together with threlated issue of affirmative action, the theory of disparate impact generated most of the controversy over the Act. Despite codification of ththeory, doubts remain about exactly what it requires and the purposethat it serves. These problems go back to the original decision iGriggs.

Under Griggs, a plaintiff can establish a violation of Title VII bproving that an employment practice has a disparate impact on persons of a particular race, national origin, sex, or religion. Once thplaintiff proves disparate impact, the burden of proof shifts to the defendant to prove that the employment practice is justified by "businesnecessity" or is "related to job performance.""[113] Under Albemarle PapeCo. v. Moody,[114] if the defendant carries its burden of proof, the burdeshifts back to the plaintiff to prove that the offered justification is pretext for discrimination. The Civil Rights Act of 1991 codified thithree-stage structure of shifting burdens of proof, though it did noclarify ambiguities in the elements of each party's case.

The fundamental ambiguity in the theory of disparate impact concerns its underlying purpose: Is it only a modest addition to the theorof disparate treatment, designed to prevent pretextual discriminatioby shifting part of the burden of proof onto the defendant? Or is it aentirely independent theory, designed to discourage employers frousing employment practices with an adverse impact upon any particular group? If the theory of disparate impact is designed only tprevent pretextual discrimination, then it would result in liability onlwhen there is evidence of disparate treatment (evidence not stronenough, however, to justify a finding of intentional discrimination)

and it would impose a significant, but not overwhelming, burden othe employer to show that a disputed employment practice is relateto performance on the job. The theory would ease the plaintiffs burden of proving intentional discrimination, but only to a degree. Bcontrast, if the theory of disparate impact is designed to discouragemployment practices that disproportionately exclude members ominority groups and women, then it would result in liability in thabsence of evidence of disparate treatment, and it would impose heavy burden on the employer to justify an employment practice witdisparate impact. The theory would serve the independent purpose oeliminating neutral employment practices that impose systematic disadvantages upon racial minorities and women.

To understand the ambiguities in the theory of disparate impact, iis necessary to examine the decisions that led from Griggs to WardCove.

Decisions Before Wards Cove

In Griggs v. Duke Power Co.,[115] the Supreme Court sent an ambivalent message, endorsing both a narrow and a broad interpretation of the theory of disparate impact. The Court seemingly endorsed a narrower version of the theory of disparate impact when it stated, "Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.[116] A few paragraphs later, however, the Court appeared to adopt the broader interpretation of the theory: "But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.[117] Likewise, on the issue of the defendant's burden of justification, the Court first appeared to place a heavy burden on the defendant, consistent with a broader interpretation of the theory: "The touchstone is business necessity."[118] But in the very next sentence, it appeared to impose only a light burden on the employer, consistent with the narrow interpretation: "If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.[119] It is unclear whether the theory of disparate impact requires a difficult showing of business necessity or an easy showing of relationship to job performance.

These ambiguities in Griggs cannot be resolved by examining the facts of the case. The evidence before the Court was equally consistent with a finding of liability based on a narrow or broad interpretation of the theory of disparate impact. The disputed employment practices in Griggs were the requirement of a high school diploma and passing scores on two general intelligence tests for hiring or promotion to higher-level departments, from which blacks had formerly been excluded entirely. The evidence before the Court was that in North Carolina, 34% of white men, but only 12% of black men, had completed high school and that 58% of whites, but only 6% of blacks, had passed a similar battery of tests, although in an unrelated case.[120] More striking was the fact that the employer had extended the high school diploma requirement and imposed the testing requirement when it abandoned segregation just before the effective date of Title Vll.[121]

Moreover, no black worker had been employed in the higher-level departments until administrative proceedings were commenced in Griggs itself,[122] and the employer offered no justification for the disputed requirements beyond a desire to improve the overall quality of its workforce.[123] The principal obstacle to applying the theory of disparate treatment was not absence of evidence, but the findings of the district court and the court of appeals that the employer had not engaged in intentional discrimination.[124] The record in Griggs may have required application of the theory of disparate impact, but it did not require a choice between a narrow version of that theory and a broad one.

Subsequent decisions of the Supreme Court, until Wards Cove, were equally ambiguous concerning the choice between a narrow version and a broad version of the theory. Most of these decisions concerned the defendant's burden of justifying an employment practice with disparate impact. The decisions are discussed in detail in the subsection below on the defendant's burden of proof, but broadly speaking, they fall into two groups. One group is consistent with the Uniform Guidelines on Employee Selection Procedures[125] adopted by the Equal Employment Opportunity Commission (EEOC); the other is not.

Uniform Guidelines on Employee Selection Procedures

The Uniform Guidelines on Employee Selection Procedures impose exacting requirements upon defendants to justify practices with dispa rate impact, although the current version of the guidelines has relaxed these requirements somewhat. The cases that follow the Uniform Guidelines have generally endorsed a broad interpretation of the theory of disparate impact.[126] Other cases, however, have imposed less stringent requirements upon the employer than the Uniform Guidelines do and, to that extent, favored a narrow interpretation of the theory.[127]

These cases raise the further issue of the authority of the Uniform Guidelines themselves. The EEOC does not have authority to promulgate substantive regulations with the force of law;[128] its guidelines on substantive issues are only interpretative regulations. Because the Supreme Court has sometimes given "great deference" to the EEOC guidelines[129] and sometimes not given them any deference at all,[130] it is difficult to determine what authority they actually possess.

Wards Cove and the Civil Rights Act of 1991

The continued ambivalence of the Supreme Court toward the theory of disparate impact is perfectly illustrated by Watson v. Fort Worth Bank & Trust,[131] the case that immediately preceded Wards Cove. In Watson, the Court expanded the scope of the theory of disparate impact, but divided evenly over the burden of proof that it placed upon employers. The first part of the opinion held that the theory of disparate impact applied to subjective employment practices, which required the exercise of discretion, in addition to standardized tests and qualifications, which were considered in Griggs and Albemarle Paper.

The Court held that such practices could be challenged under the theory of disparate impact because, otherwise, employers could avoid application of the theory simply by replacing objective employment practices with subjective decision making, which could be influenced by subconscious stereotypes and prejudices.[132] While the Court in Watson was unanimous on expanding the scope of the theory of disparate impact, in this respect, it divided evenly on what the theory required the defendant to prove after disparate impact had been shown.[133] The failure of the Court to resolve this issue in Watson led directly to Wards Cove and ultimately to the Civil Rights Act of 1991.

The decision in Wards Cove was largely, but not entirely, overruled by the Civil Rights Act of 1991. It was only on the issues of the defendant's burden of proof and the plaintiffs burden of proving pretext that the Act overruled Wards Cove. On the issue of the plaintiffs initial burden of proving disparate impact, the Act did not overrule Wards Cove and may go even further than the decision in requiring the plaintiff to identify the employment practices that caused the disparate impact. Although the former issues are of greater theoretical significance, the latter...

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