Systemic Disparate Impact

Transcription

1 Systemic Disparate Impact The 80% rule o Used by the EEOC, the U.S. Civil Service Commission, the Department of Justice, the Department of Labor E.g.: selection device; pass rate Identify group with the highest pass rate (Group A) Any other group with a pass rate less than 4/5 of the Group A pass rate=prima facie case of disparate impact Employer must demonstrate job relatedness/business necessity

2 Systemic Disparate Impact El v. SEPTA (3d Cir. 2007) o Facts; issue; bench trial Disparate impact? Job related/business necessity? Employer must show that the policy accurately but not perfectly ascertains an applicant s ability to perform successfully the job in question. Application of defense to criminal conviction policies o Note EEOC Compliance Manual

3 El (cont.) Application of defense to criminal conviction cases The issue: risk that the employee will attack a passenger The EEOC s Compliance Manual SEPTA s expert reports o El did not depose the experts; did not hire his own expert On this record, a reasonable juror would find that SEPTA s policy was consistent with business necessity

4 Systemic Disparate Impact Criminal records o Arrests; convictions Ban the Box o Remove conviction history questions from applications; delay background checks until later in the hiring process o Studies show that Ban-the-Box laws may increase discrimination Unemployment and credit scores Employer tournaments Big data The universal turn

5 Systemic Disparate Impact Jones v. City of Boston (1 st Cir. 2016) o Facts; issue Disparate impact? Job related/business necessity? Alternative employment practice: hair test plus urinalysis Court: a reasonable jury could find that the alternative practice (1) could have met the department s needs, (2) could have generated less of a disparate impact, and (3) was available and the department refused to adopt it

6 Systemic Disparate Impact Title VII Sec. 703(h): it shall not be an unlawful employment practice for an employer... to give and to act upon the results of any professionally developed ability test provided that such test... is not designed, intended, or used to discriminate... Griggs: accepts the EEOC s view that Sec. 703(h) requires that employment tests be job related

7 Validation Techniques Employer must perform a job analysis Identify critical and important knowledge, skills, and abilities (KSA) relevant to a particular job Construct a test to determine whether a candidate possesses the relevant KSAs No differential validation by race

8 Validation Techniques Criterion-related validity studies: employer devises test for jobrelated skills and compares test performance to job performance o Predictive criterion validation: applicants are tested and hired without regard to test performance o Concurrent validation: current employees are tested, test scores are compared to job performance ratings Content validation: the test is a sample of the work done on the job Construct validation: the test measures traits necessary for success on the job (e.g., verbal fluency, intelligence, mechanical comprehension)

9 Lines Of Progression

10 Systemic Disparate Impact Albemarle Paper Co. v. Moody (U.S. 1975) o Facts; issue The EEOC s Guidelines Court: Albemarle s validation study is materially defective o 1. No analysis of attributes of or skills needed in studied job groups o 2. No way to know what criteria the supervisors considered, etc. o 3. Improper focus on job groups near the top of the lines of progression for a test that will measure the minimal qualifications of workers for entry level jobs

11 Systemic Disparate Impact Section 703(h) Bona fide seniority systems are not subject to disparate impact claims o Bona fide: does not have its genesis in racial discrimination and is maintained free from any illegal purpose. Teamsters v. U.S. (1977) Bona fide merit and piecework systems are exempt from disparate impact suits

12 The Interrelationship Of Individual And Systemic Disparate Treatment Baylie v. Federal Reserve Bank of Chicago (7 th Cir. 2007) o Facts; issue Use of statistics in pattern-or-practice case; individual cases Lost opportunity, loss-of-a chance measure Plaintiffs expert: the average white worker received an extra promotion every 20 th year compared to the average black worker o If limited to full-time workers, African-Americans are slightly more likely than white workers to be promoted in a given year Holding

13 Systemic Disparate Treatment And Disparate Impact EEOC v. Dial Corporation (8 th Cir. 2006) o The Work Tolerance Screen o Thirty eight percent of women and 97% of men passed the test Jury: Dial engaged in pattern-or-practice discrimination; judge: the WTS had a disparate impact The pattern-or-practice claim: the disparity between hiring men or women showed nearly ten standard deviations; evidence was sufficient for a reasonable jury to find a pattern-or-practice of intentional discrimination

14 Dial Corp. (cont.) Judge: the WTS had a disparate impact on women, and did not have content and criterion validity See also EEOC v. Joe s Stone Crab, Inc. (11 th Cir. 2000)

15 Systemic Disparate Treatment And Disparate Impact An employer s defense to a pattern-or-practice claim can establish a plaintiff s disparate impact claim An employer s explanation and rebuttal of a prima facie pattern-or-practice claim may place before a court the elements of a disparate-impact case; the employer would then have the burden of demonstrating job-relatedness/business necessity

16 Systemic Disparate Treatment And Disparate Impact Hypo (see casebook p. 243) Employer s work force is 99% white (observed number); the relevant labor market is 23% minority (the expected number) Employer response: only workers who reside in town (99% of town s residents are white) are employed Prima facie case of intentional P-or-P discrimination? Is the employer s response a facially neutral employment practice? If accepted, a prima facie of disparate impact?

17 Systemic Disparate Treatment And Disparate Impact P-or-P cases o Intentional discrimination o Jury trial o Compensatory and punitive damages Disparate impact cases o Non-intentional discrimination o No jury trial o No compensatory and punitive damages