Disparate Impact: a Failed Remedy for Discrimination

• Publication year: 2022

53 Creighton L. Rev. 313. DISPARATE IMPACT: A FAILED REMEDY FOR DISCRIMINATION

DISPARATE IMPACT: A FAILED REMEDY FOR DISCRIMINATION

BRYCE T. DANIELS ^[D1]

I. INTRODUCTION AND SUMMARY

Disparate impact, judicially created from the Civil Rights Act of 1964 in Griggs v. Duke Power Co., ^[1] has become an essential thread in the legal fabric of anti-discrimination law. The United States Supreme Court largely eviscerated the ease of bringing a disparate impact claim in Wards Cove Packing Co. v. Atonio. ^[2] However, disparate impact was politically popular and spurred the Civil Rights Act of 1991, which statutorily codified the pre-Wards Cove burden shifting framework for bringing and adjudicating a claim.

The advent of Ricci v. DeStefano ^[3] in 2009 represents disparate impact theory in a way that requires governmental agencies such as the Equal Employment Opportunity Commission ("EEOC"), when there are instances of winners and losers, to make racial classifications in order to adjudicate claims. Given the nature of how disparate impact claims are considered in light of the Civil Rights Act of 1991, I will consider two pertinent questions regarding the future of disparate impact doctrine. The first is if disparate impact, as codified by the Civil Rights Act of 1991, is still "good law" in light of Ricci. The second is whether disparate impact normatively pursues good governance consistent with constitutional doctrine and remedial efficacy.

Understanding the adjudicative structure of disparate impact claims is essential to analyzing these questions. The markedly different burden-shifting frameworks and regulations for prima facie presentation between Wards Cove and the Civil Rights Act of 1991 serve to illuminate the change in the role of governmental agencies in evaluating claims. The racial classificatory harms of such a shift, however, manifest most clearly in Ricci.

Next, a substantive question of efficaciousness should arise from any proposed remedial framework. Given the EEOC Guideline's standards for promulgating a disparate impact claim, when compared to the causes of action that the Civil Rights Act of 1991 permits, the precedent establishing what is permissible as remedial governmental action is not met. There is a reason that the scope of remedial legislation is limited-to preclude broad swaths of legislation that enable governmental agents from impermissibly classifying protected characteristics. This has become the unfortunate reality of disparate impact.

The precedent of the Court has been that race-based classifications unequivocally warrant strict-scrutiny review, but Ricci leaves the classificatory threshold at a much lower "strong-basis-in-evidence" standard. Though this is explicated to be the standard of review in "narrow circumstances," the balancing between disparate impact and disparate treatment is a consideration that employers, and subsequently adjudicators, face much more regularly than the Court acknowledges. The EEOC's violation of the higher protection to be afforded to racial groups by the strict scrutiny standard presents a 14th Amendment Equal Protection argument as racial groups' protection under the laws now varies depending on the context. This result is antithetical to the 14th Amendment's protection and ultimately creates harms for the protected classes-particularly race.

To demonstrate this, the adjudicative structure's effect on employer action is particularly salient. The vastly different burden-shifting frameworks between Wards Cove and the resulting Civil Rights Act of 1991 created a litigative shock to employers hoping to avoid disparate impact liability. As a result, real effects that have proven to be detrimental to minorities are explicated from an economic, sociological, and legal framework.

Even in situations where employers use the tools provided to them by the internet and big data to solicit and screen prospective employees without any human-to-human interaction, businesses can still be subject to liability for disparate impact claims. This is due to how broad the EEOC triggers for disparate impact claims are currently defined. If an employer selects automated hiring and selection methods to evaluate applicants solely by merit and job-necessary skills consistent with the legitimate needs of the businesses, the employer's hope is then that the selected applicants fall into the explicit racial ratios defined and created by the EEOC via the four-fifths rule. The selection rate of racial groups that do not have the highest selection rate must constitute at least four-fifths the selection rate of the highest selected group. If the selection rate of the highest selected group is 50%, each other racial group must be selected at least 40% of the time or else those groups are deemed to suffer disparate impact, and the hiring practice is deemed illegal and impermissible. Hiring practices that do not elicit the appropriate ratios, according to the EEOC, are emblematic of adverse racial impact even if there was no knowledge of race or human contact. ^[4]

Finally, the amalgamation of the research presented here warrants rethinking the normative and legal value of disparate impact theory as a viable means for remedying discriminatory practices. The necessity of the EEOC expressly creating racial classifications in order to adjudicate claims warrants strict-scrutiny. A heightened level of scrutiny argument was presented before the Court in Ricci, though the majority explicitly refused to answer the 14th Amendment question due to the availability of statutory relief. ^[5] Given the burden shifting framework and the necessary pervasiveness of discrimination under the precedential definitions of "bias," "fairness," and "intent," the most principled alternative to current disparate impact doctrine is the reclamation of the standards set forth in Wards Cove.

II. BACKGROUND OF DISPARATE IMPACT

In 1971, the Supreme Court of the United States heard arguments for and decided the case of Griggs v. Duke Power Co. ^[6] The Court unanimously held that racially neutral policies that had a disparate impact against a protected class were inconsistent with Title VII requirements of the Civil Rights Act of 1964. ^[7] In Griggs, the Duke Power Company allowed only those with a high school degree to internally transfer from the labor department into any one of their other four departments. ^[8] Transfer was also permitted through high performance on a series of two tests-the Wonderlic Personnel Test and the Bennett Mechanical Comprehension Test. ^[9] Chief Justice Burger argued that because neither test was "direct or intended to measure the ability to learn to perform a particular job or category of jobs" that their use was unnecessary for establishing job transfers and was highly susceptible to abuse on racial grounds. ^[10] In the Court's opinion, Chief Justice Burger relied on Congressional debates and legislative history to establish a narrative that while Congress had not outlawed the use of tests for employment, they must demonstrably be reasonable measures of job performance. ^[11]

This nuance is little more than judicially-created interpretive fiction. By the negative-implication canon, Congress' lack of testing regulation must be considered intentional and therefore improperly subjected to judicial construction. ^[12] Additionally, Title VII of the Civil Rights Act of 1964 does not address the possibility of facially neutral tests creating a disproportionate impact among any of the protected classes. ^[13] Further, interpretive canons guide that if there are two conflicting, though entirely legitimate, interpretations-say one that creates the doctrine of disparate impact and another that does not-then the prevailing interpretation is the one that does not render the statute in question unrecognizable relative to the text. ^[14] As Chief Justice Burger notes, the legislative history surrounding the Act indicates an intent to eliminate barriers to employment opportunity while retaining the ability to conduct employment tests. ^[15]

III. THE ADJUDICATIVE PROCESS OF DISPARATE IMPACT CLAIMS

This jurisprudence has helped solidify the remedial nature of the Civil Rights Act of 1964's "disparate impact" theory. As the Court in Griggs v. Duke Power Co., ^[16] expounded, "[w]hat is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." ^[17] The text of this sort of remedial legislation non-controversially requires the removal of explicit and overt racial barriers in hiring and employment. ^[18] However, the Court in Wards Cove Packing Co. v. Atonio ^[19] substantially curtailed the permissible causes of action to be remedied congruent with an "on the basis" showing of causality. ^[20] In contrasting the standards that must be met in order for a Title VII claim to be brought before a court, Justice White, writing for a majority of the Court, declared that only a "reasoned review of the [defendant's] justification for his use of the challenged practice" was necessary to prove justificatory. ^[21] As a result, the ultimate burden was on the plaintiff to prove that there was a direct cause-and-effect relationship between the action and the supposed disparate impact. ^[22] The purpose of such a...