Watson and Atonio: Toward a New Theory of Disparate Impact
| Publication year | 1989 |
| Pages | 11 |
| Citation | Vol. 2 No. 7 Pg. 11 |
August, 1989
Melody Jones, J.
I. INTRODUCTION
Spurred by the racial violence of the 1960s, Congress enacted the Civil Rights Act of 1964, Title VII of which provides that:
It shall be an unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin; or
(2) to limit, segregate or classify his employees or applicants for employment in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin.[1]
Two apparently different theories for establishing employment discrimination have evolved in the years since the enactment of Title VII. The first of these, disparate treatment, focuses on the intent of the employer to discriminate.[2] In order to establish a prima facie case of disparate treatment, the plaintiff must meet the test set forth in McDonnell Douglas Corp. v. Green, [3] and show:
(i) that be belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applications from persons of complainant's qualifications.[4] Once that prima facie case has been established, then the burden shifts to the employer "to articulate some legitimate, non-discriminatory reason for the employee's rejection."[5]However, the ultimate burden of persuading the trier of fact that the employer had the discriminatory intent necessary for liability under Title VII remains with the plaintiff at all times.[6]
Under the disparate impact theory, on the other hand, no proof of discriminatory intent is necessary. The Supreme Court established in Griggs v. Duke Power Co. , [7] that a plaintiff may still establish liability when the employer uses employment practices that are "fair in form, but discriminatory in operation."[8] Once the plaintiff establishes the discriminatory impact of the employment practice, typically through statistical evidence, unless the employer can establish a "manifest relationship" between the employment practice and the employment in question, [9] the Supreme Court has held that such "built-in headwinds" for minorities are unacceptable.[10] While some commentators disagree that Congress intended Title VII to bar unintentional discrimination, [11] the oft-cited Griggs opinion and its progeny give continuing vitality to the doctrine. In addition, the EEOC Uniform Guidelines state that impact analysis should apply to "any measure, combination of measures or procedure used as a basis for any employment decision. Selection procedures include. . .physical, educational and work experience requirements through informal or casual interviews."[12]
Until recently, liability under this disparate impact theory has been imposed by the Court for non-job-related criteria such as a high school diploma requirement, [13] height and weight requirements, [14] written aptitude tests[15] and other objective selection criteria. In order for a plaintiff to prevail when subjective practices were at issue, she had to prove a case of disparate treatment.[16]
The Supreme Court's decision in Watson v. Fort Worth Bank & Trust, [17] that subjective employment selection criteria may be analyzed under a disparate impact theory, has cast a long shadow over what appeared to be a well-settled area of law. The future interpretation of Watson is sure to have far-reaching effects on employees and employers alike. However, what that interpretation may be remains somewhat of a mystery. The Court unanimously held that subjective employment practices may be analyzed according to the disparate impact theory, but beyond that basic holding, there was no majority opinion. Justice O'Connor, author of the opinion of the Court and of a plurality opinion joined by Justices Rehnquist, White and Scalia, set forth what appears to be a revolutionary new evidentiary standard for disparate impact cases. Justice Blackmun, in a separate concurrence joined by Justices Brennan and Marshall, agreed with portions of O'Connor's opinion, but disagreed strongly with her suggestion that the burden of proof in disparate impact cases should stay with the plaintiff at all times.[18] Justice Stevens also filed a concurring opinion, stating that it was inappropriate to purport to establish evidentiary standards in that particular factual contest.[19]
The Watson case left unanswered some important questions concerning the fate of the disparate impact theory. First and foremost is the question of who will bear the ultimate burden of proof. Other significant concerns are what level of proof is required of the plaintiff to establish a prima facie case, and the relationship between the alleged discriminatory practice and the job at issue. Will the plaintiff simply have to show a statistical disparity or will the specific practice which causes the disparity need to be pinpointed? The Supreme Court has recently heard oral argument in Atonio v. Wards Cove Packing Co., [20] [*] a case which may well resolve much of the uncertainty about Watson. The two questions on which certiorari was granted are, first, whether statistical evidence which only shows a concentration of minorities in unskilled jobs may be used to establish the disparate impact of hiring practices for skilled jobs, when the hiring for the skilled jobs is done outside of the work force and minorities are not underrepresented in the jobs at issue. The second question presented is whether the Ninth Circuit improperly allowed the employees to challenge the cumulative effect of a broad range of employment practices under the disparate impact theory.
How might Atonio affect disparate impact analysis? Assuming that the Court will be required to rule on who bears the ultimate burden of proof, the biggest question is whether it will be O'Connor's or Blackmun's view that will prevail. As the Ninth Circuit appears to accept Blackmun's view of the burden of proof, [21] the resolution of this issue should be very interesting indeed. Justice Kennedy, who did not participate in the Watson case, may well determine which way the Court will go. It is likely that Kennedy will lean more toward O'Connor's view than Blackmun's, suggesting perhaps that disparate impact theory is in for an overhaul. However, this paper will suggest that a compromise between the two differing views would be most likely to continue to guard employees in protected categories from discriminatory practices, without encouraging the use of quotas or placing an insurmountable burden on employers.
II. AFTER WATSON, DISPARATE IMPACT UNDER CLOSE SCRUTINY
The Court in Watson manifested its intention to preserve disparate impact analysis.[22] Nevertheless, if the plurality in Watson is able to become a majority in Atonio, the practical application of the disparate impact theory is likely to be drastically changed. A majority of the Court supported O'Connor's statement that "the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination."[23] However, it appears that Justice O'Connor's idea of how that premise should be analyzed in practice differs greatly from the view espoused by the concurring Justices.
A. The majority opinion
Justice O'Connor begins Section II of her majority opinion with a fairly benign summary of how the disparate treatment theory works. She states that "the distinguishing features of the factual issues that typically dominate in disparate impact cases do not imply that the ultimate legal issue is different than in cases where disparate treatment analysis is used."[24] This does not imply that O'Connor sees no difference between the two theories; she frankly acknowledges their inevitable differences, yet continues, "we think it is [in] appropriate to hold a defendant liable for unintentional discrimination on the basis of less evidence than is required to prove intentional discrimination."[25] Taken at face value, these statements do not seem overly bold or controversial. However, they may shed some light on future interpretations of the disparate impact theory if indeed Justice O'Connor's view prevails in Atonio.
Prior to Watson, each of the Court's disparate impact decisions involved standardized employment tests or objective criteria. Therefore, the Court had never been faced with the question of whether disparate impact analysis should apply to employment decisions based on subjective criteria.[26] Subjective practices have traditionally been analyzed by the Supreme Court under a disparate treatment theory, [27] while the Courts of Appeals were in direct conflict with each other on whether or not disparate impact analysis could properly be applied to subjective criteria.[28] Certiorari was granted in Watson apparently to resolve that conflict. In order to do so, the Court's opinion states that it must determine "whether the reasons that support the use of disparate impact analysis apply to subjective employment practices, and whether such analysis can be applied in this context under workable evidentiary standards."[29]
The majority in Watson concluded that "disparate impact analysis is in principle no less applicable to subjective employment criteria than to objective or standardized tests, " because, "in either case, a...
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