In comparison to disparate treatment, disparate impact is less common and has a different burden of proof in discrimination cases. Typically this theory involves a claim that a facially neutral employment practice, e.g., merit promotion procedures, is being applied in a manner as to disadvantage members of a protected class(es). While this theory is more often used in class action cases, it may be used to challenge an employment practice as disadvantaging a certain group. An example would be a job vacancy announcement requiring a college degree where successful performance in the position is not dependent upon a four-year degree. There is no need to prove intentional discrimination to prevail under disparate impact; rather a statistical analysis may used to prove that the requirement of the four-year degree disadvantage African American applicants.

In the leading case of Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Supreme Court dealt with a challenge to a requirement that applicants must have a high school degree or pass a standardized general intelligence test as a prerequisite for hiring and transferring into some of its departments. The Court found that the black plaintiffs had to demonstrate that the employer’s facially neutral test disqualified a disproportionate number of the protected class. Then the burden of persuasion shifted to the employer to demonstrate a compelling business necessity for the test. In Griggs, this meant that the employer had to prove that there was a direct correlation between the test scores and job performance. As a result, the Court struck down the positive educational criteria because the company had conducted no studies and white employees, who were hired prior to the new requirements, had been able to perform satisfactorily and be promoted.

Following the Supreme Court’s decision in Ward’s Cove Packing Co. v. Atonio, 490 U.S. 642 (1988), which reduced the employer’s burden to one of persuasion and rejected any “bottom line” statistical approach to disparate impact cases, the Civil Rights Act of 1991 reinstated the adverse impact analysis previously used in Griggs in 42 USC 2000e-2(k). The bottom-line concept is a statistical test set forth in 29 CFR 1607.4 where the Commission applies the 4/5’s rule, i.e., that the challenged employment practice adversely impacts on the protected group which has less than an 80% selection rate in comparison to the rate of the group with the highest rate. The EEOC quickly complied with the Civil Rights Act of 1991 in its decision in Knight v. Secretary of Navy, No. 03930029 (1993), and in subsequent decisions, including Barela v. Secretary of State, No. 01965017 (1997), where it set forth the basic elements of a prima facie case of disparate impact analysis:

To establish a prima facie case of race and national origin discrimination under a disparate impact theory, a complainant must show that the challenged policy disproportionately impacts members of the protected class. Specifically, a complainant must: 1) identify the specific practice or practices challenged; 2) show statistical disparities; and, 3) show that the disparity is linked to a challenged practice or policy. Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988).

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