{Read in 3:30 minutes} In my last article, I discussed a pattern of discrimination in terms of the disparate impact on African Americans. But what does “disparate impact” mean? In 1971 the Supreme Court adopted the position of the Equal Employment Opportunity Commission (“EEOC”). In Griggs v. Duke Power Co. (1971), the Court invalidated an employer’s requirement that applicants have a high school diploma and/or pass aptitude tests for hire and transfer into more desirable departments where prior to the enactment of Title VII the company had restricted blacks to labor positions. Specifically, the Court stated:
The Act proscribes not only overt discrimination, but also practices that are fair in form but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [blacks] cannot be shown to be related to job performance, the practice is prohibited . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.
Accordingly, in a disparate impact case, you don’t necessarily have to prove intentional discrimination. If you have statistics and other anecdotal evidence demonstrating that an employer is engaged in a policy that discriminates against certain workers, you have a case of disparate impact — even if that policy appears to be neutral on its face.
For instance, some voting policies have been used to perpetuate discrimination, such as if you failed to pass a voting test, you were precluded from voting in an election. On its face, that is a non-discriminatory policy, but failure to pass the test would prevent certain persons from exercising a constitutional right. If you enacted that law and the majority of persons affected were from one class of persons, you would be able to prevent that class from voting.
There are similar laws throughout the South that have been knocked down as unconstitutional. In the workplace setting, for instance, some of the local police departments have been taken to task for creating requirements that may have a disparate impact. One of those is that police officers, even if they’re not in the Marine unit, have to know how to swim.
If you grew up in the inner city or not near the water, you may not know how to swim. The requirement could be changed to, “When did you learn how to swim?” But even then, if you are older and learned how to swim later in life, it could have a disparate impact on minorities who didn’t have access to a pool or the beach growing up.
The concept of disparate impact recognizes that sometimes there are policies that have an intended or even unintended effect on hiring and promotions: while on its face that policy is not discriminatory, it can have a discriminatory impact. It should be the goal of employers to create and implement policies that prevent discrimination, including discrimination via disparate impact.
Robert J. Valli, Jr.
Partner
email: [email protected]