An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants--upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, I propose that when plaintiffs contribute to a disparity in this way, the employer should not be liable. I demonstrate that the "lack of effort" defense is consistent with the text of Title VII and the case law, which has largely ignored this issue. Finally, I show that my proposal is supported by both the theoretical rationales underlying disparate impact and a consequentialist analysis.
TABLE OF CONTENTS INTRODUCTION I. AN OVERVIEW OF THE PROBLEM A. The Lanning Problem B. Generalizing the Example: The Breadth of the Problem II. FITTING A DUTY TO TRAIN INTO THE LAW OF DISPARATE IMPACT A. The Statutory Bases for a Reasonable Efforts Defense 1. Integrating a Failure To Train Defense with Current Defenses to a Prima Facie Case of Disparate Impact 2. Statutory Bases for a Failure To Train Defense a. [section] 703(k)(1)(A)(i) and Causation b. [section] 703(k)(1)(B)(ii) and Job Relatedness c. [section] 706(g) and the Duty To Mitigate B. The Case Law 1. Failure To Train as a Defense to Liability 2. No Disparate Impact for Easily Mutable Characteristics 3. No Plaintiff Contribution to Disparate Impacts III. THEORETICAL FOUNDATIONS FOR DISPARATE IMPACT AND THE TWO-PARTY PROBLEM A. Proxy for Motive B. Group Rights/Distributive Justice C. Remedying Past Discrimination IV. AN ECONOMIC ANALYSIS OF DISPARATE IMPACT LIABILITY WITH TWO-PARTY CAUSATION A. The Effects of Disparate Impact Liability on Effort by Applicants 1. Ex Ante Moral Hazard 2. Ex Post Moral Hazard B. A Normative Analysis 1. Offsetting Benefits and the Measure of Harm 2. Non-distributional Preferences V. IMPLEMENTATION A. The Meaning of "Reasonable Efforts" 1. A Cost/Benefit Test 2. The Breadth of the Standard B. Wholesale Disparities vs. Individual Plaintiffs C. Other Contexts CONCLUSION INTRODUCTION
In the first--and in some sense the paradigmatic--disparate impact case, Griggs v. Duke Power Co., (1) the Supreme Court declared that Title VII protects workers who are victims of "practices, procedures, or tests neutral on their face, and even neutral in terms of intent ... [that] operate to 'freeze' the status quo of prior discriminatory employment practices." (2) At issue in Griggs was the employer's use of a high school graduation requirement and an "intelligence" test, both of which disqualified a larger proportion of black than white applicants. (3)
Left unexamined by Griggs, and by virtually all subsequent disparate impact cases, was the question of why the disparity in pass rates occurred in the first instance. (4) The neglect of this question is understandable in the context of Griggs. The reason black applicants in 1965 North Carolina had lower high school graduation rates and scored lower on "intelligence" tests than whites is obvious: it was the legacy of decades of Jim Crow, including segregated and inferior education, and hundreds of years of slavery and discrimination. Much of this legacy remains today and plays a continuing role in explaining inter-group disparities.
But in the years since Griggs, the problem of disparate impact liability has come to take on an unappreciated dimension: some disparities are caused, in part, by applicants' failure to make reasonable efforts to train for a test or to prepare for some other job requirement. Thus, imagine a running test that had a higher pass rate for men than women. Imagine further that most female applicants did not train for the test, although among those who made a modest effort to do so, the pass rate was virtually the same as that for men. (5) Or consider a reappointment test for a city auditor position, for which several of the incumbent Hispanic auditors failed to study under the unreasonably mistaken belief that they did not need to take the exam. Although the pass rate for Hispanics who did study was no lower than for whites, inclusion of the non-studying Hispanic applicants created at least a prima facie case of disparate impact. (6) These examples raise the obvious question of whether the performance of those who did not train should be included in the calculation of the tests' disparate impacts. Put another way, should employers be responsible for the poor performance of non-trainers?
Before addressing this question, an important preliminary issue must be resolved: Does it constitute "blaming the victim" (7) to attribute some responsibility for disparities in pass rates by race or gender to the applicants themselves? I believe the answer is "no" for two reasons. First, I am not suggesting that all, or even most, disparities are caused even in part by the victims of such disparities. In many instances, there will be little or nothing that plaintiffs can do to overcome the effects of an employment requirement. My analysis is limited only to those cases in which there is something that plaintiffs could have done to improve their chances of passing a test or meeting some other requirement. Second, I will argue that applicants should only be required to make such efforts to prepare or train for a test as are both feasible and reasonable. Those who fail to meet this standard can be seen, plausibly, as inflicting injuries on themselves; but for their own actions, which could have been different, a more successful outcome would have been realized. When the "victim" and the "injurer" are actually the same person, one is free to characterize the explanation for the plaintiffs lack of success as "blaming the injurer," rather than "blaming the victim."
In one sense, the existence of two-party disparate impacts is an indicator of progress. No longer is it true that the only reason black or female applicants fare worse than whites or males is the dead hand of the past. Put another way, to the extent that disparities in pass rates are caused by applicants' failure to make reasonable efforts to train, it is tautologically true that the disparities would be smaller if such efforts had been made, regardless of the applicant's race or gender. The good news, then, is that there is something else we can do about disparate impacts besides outlawing them--we can encourage applicants to eliminate the disparities themselves by making reasonable efforts.
This Article suggests that the way to accomplish this goal is to give employers an affirmative defense if they can show that plaintiffs seeking to establish disparate impact liability failed to make reasonable efforts to meet the job requirement being challenged. Following a description of the problem in Part I, Part II discusses the statutory and case law bases for disparate impact liability when plaintiffs fail to make reasonable efforts to train for or to pass a test. I show that such liability is consistent with Title VII and with the meager body of cases that have recognized the problem. Part III then examines various theoretical justifications for disparate impact liability. I conclude that these theories support, or are at least consistent with, a requirement that plaintiffs make reasonable efforts to prepare for a test. Drawing loosely on the economic theory of tort law, Part IV offers a consequentialist analysis of a reasonable efforts requirement, demonstrating why such a requirement is likely to be welfare-enhancing. Finally, Part V shows how a duty to make reasonable efforts could be operationalized, and also considers some implementation issues.
AN OVERVIEW OF THE PROBLEM
The problem of two-party causality in disparate impact suits has not been widely recognized or adequately addressed by either courts or scholars. To fix ideas, I begin with an example, which also illustrates the basic contours of disparate impact liability.
The Lanning Problem
Lanning v. Southeastern Pennsylvania Transportation Authority (SEPTA) concerned the use of a timed running test as a criterion for hiring transit police officers. (8) To make out a prima facie case of disparate impact, the law requires that plaintiffs identify "a particular employment practice that causes a disparate impact." (9) In this case, the particularity requirement was easily met by pointing to the cutoff score on the test, which had been set at 12 minutes for a 1.5 mile run, in order to screen out those with an aerobic capacity of less than 42.5 mL/kg/min. (10)
The standard for what constitutes a cognizable disparate impact is articulated by the Equal Employment Opportunity Commission's Performance Selection Guidelines, which suggest that an employment practice that generates
[a] selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact. (11) Twelve percent of the female applicants completed the run in under the threshold time, while 60 percent of male applicants did, (12) so the test had a pass rate ratio of 0.2 (.12/.6), far short of the EEOC's 4/5ths threshold.
The Lanning I plaintiffs clearly made out a prima facie case of disparate impact, but SEPTA had an affirmative defense if it could show that the contested selection practice was "job related for the position in...