Lexicon, Disparate Impact

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.


Causation, Part 5 (How History is Important Now)

In prior posts, I explored how two seminal discrimination cases (Griggs and McDonnell Douglas) approached causation. Importantly, neither case took a narrow, textual view. In neither case did the Court purport to look up the meaning up “because of” and magically reach an understanding about causation and discrimination law. Neither case explicitly relied on “but for” cause.

These two cases defined the core contours of Title VII litigation. Until the late 1980s, they were the Court’s major pronouncements about causation under Title VII. As I will discuss in future posts, recent cases have made a radical turn away from these early views of causation. This leads to major disconnects and questions in the underlying doctrine. And, as we will explore, the “elements” of a discrimination claim become increasingly complex as the Court jettisons (at least in part) these early cases.

Litigants arguing about causation questions in current cases should not forget this early history. In too many cases, courts exploring causation begin discussing cases from the late 1980s, like Price Waterhouse. But, the causation conversation started much earlier with Griggs and McDonnell Douglas, even if these cases are not traditionally described as being about causation.  Those advocating for legislative responses to Nassar and Gross can also use these early cases to show how recent Supreme Court cases ignore important parts of the historical development of Title VII and how courts and litigants first understood causation.

Causation, Post 3 (History of Cause Doctrine)

Before we dive into the causation trilogy cases, it is worthwhile to place them in historical context. This historical context is important because it illustrates why some of the current confusion in causation doctrine exists.

Two early Supreme Court began to lay the framework for current discrimination doctrine. In 1971, the Supreme Court decided Griggs v. Duke Power Co., 401 U.S. 424 (1971). Two years later, the Court decided McDonnell Douglas v. Green, the next major case to explain the core protections of Title VII. 411 U.S. 792 (1973).

Importantly, the Supreme Court decided both of these cases prior to the time when textualism became a primary vehicle for interpreting statutes. This is significant for the causation question because the modern cases tend to make textualist claims, by arguing that the words “because of” mean causation. Although both Griggs and McDonnell Douglas start to discuss the connection an employee must prove between adverse consequences and a protected trait, these cases do not do so in an explicitly textualist way. This makes it difficult to mesh these cases with later cases that claim that a certain word has a fixed meaning.

Further, neither of these cases frames the underlying inquiry as being connected to an existing legal notion of cause. In other words, neither of these cases borrows tort ideas of causation. When modern courts look to tort causation principles, it is often difficult to integrate both the letter and spirit of Griggs and McDonnell Douglas into these different notions of causation.

This post will focus on Griggs and its implications for causation doctrine. In a later post, I will discuss McDonnell Douglas.

In Griggs, the Court recognized a disparate impact theory under Title VII. When doing so, the Court stated that it was determining the plain meaning of the statute. However, the Court did not determine the plain meaning of the statute by looking up the meaning of the words “because of” in a dictionary. Rather, the Court stated:

The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.

Griggs, 401 U.S. at 429-430. The Court further reasoned that an employer could not use tests or job criteria that produced a disparate impact based on a protected trait unless those tests and criteria were demanded by business necessity.

Note how this reasoning is very different than what occurs in the causation trilogy. First, the Court does not explicitly connect the words of the statute to an existing definition of cause. Second, when the Court discusses the plain meaning of the statute, the Court claims that it finds this plain meaning by looking at the goals of Title VII. Third, the Court roughs out the beginning of a disparate impact claim, and the causal connection the Court develops is not an existing “but for” cause or motivating factor standard.