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Two Faces of Disparate Impact Discrimination

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Two Faces of Disparate Impact Discrimination Fordham Law Review Volume 59 Issue 4 Article 3 1991 Two Faces of Disparate Impact Discrimination Pamela L. Perry Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Pamela L. Perry, Two Faces of Disparate Impact Discrimination, 59 Fordham L. Rev. 523 (1991). Available at: https://ir.lawnet.fordham.edu/flr/vol59/iss4/3 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Two Faces of Disparate Impact Discrimination Cover Page Footnote I want to express my gratitude to Ann Freedman, Scott Buchheit and Keven Buchheit for their support in the creation of this Article. I also gratefully acknowledge the research assistance of Nancy Macirowski, Ann Moscatelli and Katherine Tasch. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol59/iss4/3 TWO FACES OF DISPARATE IMPACT DISCRIMINATION by PAMELA L. PERRY* Introduction .................................................. 524 I. The Spectrum of Disparate Impact Theories ............... 527 A. Intent-Based Theories ................................. 528 1. Discriminatory Purpose Theory ................... 528 2. Fault Theory ..................................... 531 B. Causation Theories ................................... 533 C. Effects-Based Theories ................................ 536 D. Summary ............................................ 539 II. Comparing the Fault and Effects Theories under Title VII .. 540 A. The Distinct Theories of Discrimination................. 540 1. Legislative Support for Both Theories .............. 541 2. Neutral Treatment Interpretation More Consistent with Congressional Purpose ....................... 547 B. The Evidentiary Contours of the Theories .............. 551 1. The Facially Neutral Criterion .................... 552 a. Subjective Criteria ............................. 553 b. The Control Element .......................... 554 2. Proving Disproportionate Impact .................. 558 a. Causation of Impact ........................... 560 b. Impact on Whom? .............................. 564 c. How Much Impact?............................. 570 d. Bottom-Line Defense ........................... 574 3. Business Necessity Response ....................... 580 a. Evidentiary Disputes on Business Necessity ....... 581 i. Burden of Proof ............................ 581 ii. Standard of Scrutiny ....................... 582 iii. Lesser Impacting Alternatives .............. 585 b. Consequences of the Business Necessity Distinctions .................................... 587 4. Sum m ary .......................................... 591 Conclusion ..................................................... 593 * Associate Professor, Rutgers School of Law, Camden, New Jersey; B.A. 1975, Miami University, Ohio; J.D. 1978, Georgetown University Law Center. I want to ex- press my gratitude to Ann Freedman, Scott Buchheit and Kevin Buchheit for their sup- port in the creation of this Article. I also gratefully acknowledge the research assistance of Nancy Macirowski, Ann Moscatelli and Katharine Tasch. FORDHAM LAW REVIEW [Vol. 59 INTRODUCTION FOR decades, courts and commentators have debated the relationship between discrimination against a protected group and evidence that members of that group are disproportionately excluded from an opportu- nity or benefit.1 For example, would distinguishing between job candi- dates on the basis of a standardized test that excludes substantially more African-Americans than other racial groups be probative of discrimina- tion because of race?2 Would distinguishing between candidates on the basis of height, resulting in the exclusion of substantially more women or Asians than men or other ethnic groups, be probative of discrimination because of sex or national origin?3 Few would argue that proof of disproportionate impact is irrelevant to the issue of discrimination; exactly how it relates, however, is more con- troversial.4 The relationship depends on the theory of discrimination.5 Indeed, the relevance of disparate impact evidence, like any evidence, depends on what it is being offered to establish.6 But there is no consen- 1. Writing in 1976, Professor Brest stated: Of the civil rights issues that have emerged during the past decade, two of the most controversial and important involve the propriety of granting racial pref- erences to traditionally disadvantaged minorities and the operational relevance of the fact that a color-blind practice has a disproportionate adverse impact on the members of a racial minority group. Any attempt to resolve these issues must begin by examining the rationales for, and parameters of, the antidis- crimination principle [or other theories to remedy discrimination]. Brest, The Supreme Court 1975 Term-Foreword: In Defense of the Antidiscrimination Principle,90 Harv. L. Rev. 1, 4-5 (1976); see also infra Section I (describing the variety of theories using evidence of disparate impact to prove illegal discrimination). 2. Compare Washington v. Davis, 426 U.S. 229, 242 (1976) ("Disproportionate im- pact [on black applicants resulting from a civil service exam] is not irrelevant, but is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.") with Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) ("If an employment practice [such as a general intelligence test] which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited."). Cf. The Voting Rights Act Amendments of 1982, 42 U.S.C. § 1973b (1988) ("No citizen shall be denied the right to vote ... because of his failure to comply with any test [in a jurisdiction with less than 50% of the persons registered or voting in the presidential election] ... [if] the test... has been used during the ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color.") 3. Under Title VII, "a plaintiff need only show that the facially neutral standards in question [such as a height minimum] select applicants for hire in a significantly discrimi- natory pattern", and then "the employer must meet 'the burden of showing that any given requirement [has] . a manifest relationship to the employment in question.' " Dothard v. Rawlinson, 433 U.S. 321, 329 (1977) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)). 4. See supra notes 1-3; see also Welch, Superficially Neutral Classifications: Ex- tending Disparate Impact Theory to Individuals, 63 N.C.L. Rev. 849, 874-75 (1985) ("[T]he use of statistics has become routine in Title VII cases not because the law man- dates proportional outcomes but because of what disproportionate outcomes tell us about discriminatory behavior.") (footnote omitted). 5. See supra note 1. 6. See James, Relevancy, Probability and the Law, 29 Calif. L. Rev. 689, 690-91 (1941). 1991] DISPARATE IMPACT sus on what constitutes discrimination under the various antidiscrimina- tion laws.7 That is the crux of the problem. The current debate over the theory of disparate impact discrimination under Title VII of the Civil Rights Act of 19648 has been raised implicitly in cases focusing on disputes over particular evidentiary issues.9 Because these issues have been resolved without explicit articulation of a dispa- rate impact theory of discrimination, the evidentiary rulings' have led to inconsistent interpretations of disparate impact doctrine'" under Title VII. The debate became more pronounced in the Supreme Court's contro- versial decision, Wards Cove Packing Co. v. Atonio, 2 which adopted cer- tain evidentiary standards for disparate impact cases that were inconsistent with standards adopted over two decades ago in the landmark decision Griggs v. Duke Power Co. 3 In response, Congress is considering legislation to reverse Wards Cove and to restore the Griggs standards.14 Even this recent controversy, however, focuses on resolving 7. See infra Section I. 8. See 42 U.S.C. § 2000e to 2000e-17 (1988). 9. See infra notes 16-17 and accompanying text. The most explicit discussion of the theoretical debate occurred in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). Compare id. at 985-91 (plurality) (disparate impact doctrine prohibits facially neutral practices that operate "functionally equivalent" to intentional discrimination) with id. at 1001-06 (Blackmun, J., concurring) (disparate impact doctrine focuses on the effect of facially neutral practices, not on the employer's intent). See also Connecticut v. Teal, 457 U.S. 440, 458-59 (1982) (Powell, J., dissenting) (disparate impact doctrine focuses on ulti- mate impact on protected group to raise inference of discrimination against individual group members). 10. See infra Appendix-Summary of Comparison of Evidentiary Issues. 11. See e.g., Cox, Substance and Process in Employment Discrimination Law: One View of the Swamp, 18 Val. U.L. Rev. 21, 46 (1983) [hereinafter "Cox I"] (suggesting that the "incoherence [of the Supreme Court's interpretation of disparate impact discrimina- tion] is traceable to the Court's failure to explain which of a number of plausible but largely inconsistent functions the [disparate impact] model serves"); Cox, The Future of the DisparateImpact
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