Scaling the wall and running the mile: the role of physical-selection procedures in the disparate impact narrative.

Author:Wu, Yiyang

Since the Supreme Court's landmark decision in Dothard v. Rawlinson in 1977, gender-based disparate impact litigation has been limited in scope, but there remains room for growth. This Comment focuses on one particularly successful subset of gender-based disparate impact cases, physical-selection procedures. An examination of these decisions shows that plaintiffs have faced an uphill battle in combating unfounded assumptions, both in establishing a prima facie case as well as in rebutting the affirmative defense. Indeed, some lower courts have relied on arguments that are inconsistent with the Supreme Court case law as it has progressed since Griggs v. Duke Power Co.

At the same time, the success of physical-selection procedure cases offers hope for expansion going forward. By contextualizing an industry 's practices, referring to narratives of female applicants, and providing examples of reasonable alternatives, advocates have succeeded in positively framing their arguments in a manner that factfinders are likely to welcome. In doing so, advocates can help reclaim the ideals of Title VII and the disparate impact movement.

INTRODUCTION I. THE STANDARD DISPARATE IMPACT DOCTRINE A. Griggs and Its Progeny B. Wards Cove and the Civil Rights Act of 1991 C. Ricci v. DeStefano: An Update on the Disparate Impact Doctrine II. THE GENDER-BASED DISPARATE IMPACT DOCTRINE A. Dothard v. Rawlinson: Limits to Its Strengths B. Gender-Based Disparate Impact in Lower Federal and State Courts After Dothard III. A SUBSET OF SUCCESS: PHYSICAL-SELECTION PROCEDURE CASES A. Absence of Disparate Impact Statistics B. Failure to Train C. The Catchall Business Necessity Defense D. "Strength Is Not Always Everything," and "More Is Not Always Better". IV. BEST PRACTICES FOR GENDER-BASED DISPARATE IMPACT CASES A. Contextualize the Test and the Industry B. Appeal to the Factfinder's Capacity to Dismiss Unfounded Stereotypes C. Address Valid Safety Concerns by Providing Concrete Reasonable Alternatives D. The Doctrine Shall Set You Free CONCLUSION INTRODUCTION

The merits and potential of disparate impact theory have been enthusiastically championed and critically debated (1) since its Supreme Court inception in 1971. (2) Indeed, the Court's most recent decision, Ricci v. DeStefano, in which the Court considered the constitutionality of an employer's reaction to allegations of a disparate impact on African American candidates as a result of written promotion exams, (3) has reinvigorated the discourse but provided few answers. Most of the disparate impact debate after Ricci has understandably centered on the future of race-based claims. (4) Professors Mario Barnes, Erwin Chemerinsky, and Trina Jones, for example, have argued that the Ricci decision signaled the Court's intent to enter a realm of "post-race equal protection." (5) Yet this race-focused discourse obfuscates the fact that female disparate impact claimants face disparities at least as dramatic as those faced by African American claimants. And almost no attention has been paid after Ricci to how gender-based disparate impact cases have fared or what the doctrine's future prospects are for success. (6)

In this Comment, I focus on one increasingly prevalent subset of gender-based disparate impact litigation: physical-selection procedure cases. Physical-selection procedure litigation typically features female plaintiffs who challenge the use of certain employer-instituted tests, such as wall climbs and timed mile runs, which act as barriers to female entry into traditionally male-dominated jobs. In deciding these cases, courts tend to rely on a number of unfounded assumptions, particularly with regard to the relationship between strength and safety, and make assertions that are inconsistent with disparate impact theory as articulated in Supreme Court opinions from Griggs v. Duke Power Co. (7) onward. However, plaintiffs who confront these flawed assumptions have been able to achieve success in a number of lower courts. (8) In this Comment, I identify the roadblocks commonly facing physical-selection procedure claims and suggest best practices that might enable claimants to overcome them.

Part I of this Comment describes the standard (mostly race-based) disparate impact doctrine as it has evolved since Griggs. (9) Part II examines the gender-based disparate impact movement, demonstrating that its expansion beyond height and weight requirements has, for the most part, been limited. In marked contrast, litigation surrounding physical-selection procedures has had atypical success in lower courts. Parts III and IV focus on lower court decisions in physical-selection procedure cases and identify patterns that help to explain why certain plaintiffs succeed where others fail. I argue that successful plaintiffs have been able to bypass certain common obstacles, including arguments that females must train for their examinations and arguments that physical-selection procedures are a business necessity. In unsuccessful physical-selection procedure cases, courts have misinterpreted Supreme Court precedent and relied instead on unproven assumptions that ignore the reality of the employer's actual needs.

I conclude in Part IV with suggestions that may enable future gender-based disparate impact advocates to find greater success. Advocates should first contextualize the industry and the particular employment practice. Second, advocates should attempt to humanize the consequences of these questionable practices and misguided assumptions by referring to the specific narratives of applicants. Third, advocates should provide concrete examples of reasonable alternatives to the challenged procedure. Finally, advocates should consistently ground their arguments in the disparate impact theory as put forth in Griggs. In doing so, advocates will further not only the progress of gender-based causes but also the disparate impact movement at large.


    To understand the current state of disparate impact litigation, it is important to trace its historical roots from its inception. By examining Title VII of the Civil Right Acts of 1964, (10) the Griggs progeny, (11) and the Civil Rights Act of 1991, (12) I aim to make two points: first, the Court intended disparate impact litigation to serve as a counterpart to disparate treatment cases; (13) second, the Court's analysis of disparate impact theory has overwhelmingly focused on race-based claims. Thus, a separate analysis of gender-based disparate impact case law is needed.

    1. Griggs and Its Progeny

      In Griggs v. Duke Power Co., the Supreme Court held that Title VII prohibits neutral employment policies that have a disparate impact on African American plaintiffs without a business necessity justification. (14) In Griggs, a power plant required its employees to pass two screening tests and have a high school diploma in order to obtain a position outside of the labor department. (15) The plaintiffs were able to demonstrate that this policy had a disproportionately adverse impact on African Americans. (16) The Court held that the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability." (17) Because the power plant could not show that the test served an overriding business necessity, the Court ultimately held that the employer's selection procedures violated Title VII. (18)

      Relying upon the general language in Griggs, the Court decided several disparate impact cases clarifying the doctrine in a decidedly pro-plaintiff manner. In Albemarle Paper Co. v. Moody, the Court held that an employer, in order to comply with Tire VII, must demonstrate by "professionally acceptable methods" that its discriminatory tests are "predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job." (19) Although the employer in Albemarle, perhaps taking a lesson from its counterpart in Griggs, had conducted a haft-day study to prove that its general ability tests were correlated with job performance, the Court noted that the study results were not statistically significant, were highly subjective, and involved an unrepresentative sample group. (20) The Court also created a surrebuttal to the Griggs framework, holding that plaintiffs could defeat the business necessity defense by showing "that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest." (21)

      Dothard v. Rawlinson, which prohibited height and weight requirements for employment within prison systems that "had a discriminatory impact on women applicants," (22) is the only case in which the Court has ever considered the merits of a gender-based disparate impact claim. The Court in Dothard set forth the following business necessity test: first, a defendant must articulate a quality "essential to effective job performance," and second, it must prove that the challenged practice accurately assesses that quality. (23) The Court also explicitly held that an employer could be liable for using tests that had a disparate impact across gender lines. (24) However, as I argue in Section II.A,

      the Court failed to take advantage of the opportunity Dothard presented to strengthen the gender-based disparate impact doctrine.

      The next set of decisions, Connecticut v. Teal and Watson v. Fort Worth Bank & Trust, contributed rules to the emerging doctrine but also made moves toward fashioning a more limited cause of action. In Teal, the employer attempted to compensate for a discriminatory selection procedure by promoting African Americans and ensuring that the overall result of the process would be an "appropriate racial balance." (25) The Court rejected the employer's contention that its bottom-line result could be a complete...

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