By Erin Alderson
Disparate impact discrimination occurs when an employer’s business practice has a disproportionate and adverse effect on persons in a protected class. The disparate impact theory of discrimination was first articulated in the Supreme Court case, Griggs v. Duke Power Co., 401 U.S. 424 (1971).
In Griggs, a group of African-American employees sued their employer, a power company, for requiring applicants to possess a high school diploma and a certain test scores to qualify for certain jobs. The District Court and the United States Court of Appeals for the Fourth Circuit held that absent a discriminatory motive the requirements were proper. The Supreme Court held that these practices constituted disparate impact discrimination because the standards were not shown to be significantly related to successful job performance and the requirements disqualified African-Americans at a substantially higher rate than white applicants.
In 1991, Congress codified disparate impact into Title VII. The Civil Rights Act of 1991 added the following language:
(k)(1)(A): An unlawful employment practice based on disparate impact is established under this title only if:
(i) A complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or
(ii) the complaining party makes the demonstration described in sub paragraph (c) with respect to an alternative employment practice and the respondent refuses to adopt such alterative employment practice.
This language sets up a three-part test for disparate impact claims under Title VII. First, the plaintiff establishes that an employment practice causes a disparate impact. An employer can overcome a claim of disparate impact discrimination by demonstrating that the employment practice in question is “job related for the position in question and consistent with business necessity” (for Title VII discrimination claims). The plaintiff can still prevail if it can show that the employer could have used an alternative employment practice that did not result in a disparity.
An example may be helpful. Let’s say a city requires all firefighters to have a height of 6 feet and weigh at least 140 pounds. This requirement would have an adverse effect on women. The employer would likely be unable to show that a height and weight requirement is necessary for the job. Rather, if the employer wanted to test strength, the employer should rely on tests that measure it. In this case, height and weight are not a good proxy for strength and are not related to job performance.
Under the Age Discrimination in Employment Act (ADEA), the analysis works differently. The first step is the same as for Title VII cases, where the plaintiff establishes that a particular practice created a disparate impact. However, the employer’s response to this showing is different under the ADEA than it is under Title VII. An employer can overcome a claim of disparate impact discrimination under the ADEA if it demonstrates that the practice was based on a reasonable factor other than age. Smith v. City of Jackson, 544 U.S. 228 (2005). In Meacham v. Knolls Atomic Power Laboratory, the Supreme Court clarified that the employer has the burden of demonstrating that the challenged employment practice is “based on reasonable factors other than age” (RFOA) because it is an affirmative defense. Many employers have successfully used this defense by demonstrating that the practice in question is reasonable. Unlike the “business necessity” defense, which is used in Title VII disparate impact claims, the RFOA defense does not consider whether there are other ways for the employer to achieve its goals which would not result in a disparate impact on a protected class.