Claims: Systemic Disparate Impact

Question 1

What does a claim for systemic disparate impact discrimination allege?

Answer 1

An employer’s facially neutral policies, regardless of the intent, adversely affect a protected class more than other, and cannot be adequately justified.

Question 2

When alleging a claim for systemic disparate impact discrimination, the claimant does NOT need to show . . .

Answer 2

Intent

Question 3

What are the four elements of a prima facie case under a claim for systemic disparate impact discrimination?

Answer 3

Protected class

A particular employment practice

Causation

Disproportionate impact

Question 4

In a claim for systemic disparate impact discrimination, the plaintiff has the burden to identify the _____ ______ that causes the impact.

Answer 4

Specific practice

Question 5

What is the Bottom Line Exception to a plaintiff’s burden to identify the specific practice that causes a disproportionate impact in a systemic disparate impact discrimination claim?

Answer 5

If the plaintiff cannot tell which precise practice causes the impact because the employer does not keep such records, then the plaintiff can use the “bottom line” to prove the prima face case (e.g., No women are getting this job).

Question 6

In a claim for systemic disparate impact discrimination, the plaintiff must prove that the practice she challenges cause a what?

Answer 6

Disparate impact.

Question 7

Explain the EEOC’s 4/5 Rule for claims of systemic disparate impact discrimination.

Answer 7

The EEOC adopted the 4/5 (i.e., 80%) rule where if the protected group pass rate is less than 80% of the non-protected remainder’s pass rate, it will be regarded as evidence of adverse impact.

Question 8

Men and women take a test. Of the men, 75% pass; of the women, 25% pass. Is this evidence of disparate impact? Explain

Answer 8

Yes. Under the EEOC’s 4/5 Rule, if the protected group pass rate is less than 80% of the non-protected remainder’s pass rate, it will be regarded as evidence of adverse impact.

Here, the women pass at a rate of 33% the men’s pass rate.

Question 9

Under a claim for systemic disparate impact discrimination, a practice may be challenged when it is . . . ?

Answer 9

Adopted, as well as when it is implemented.

Question 10

Under a claim for systemic disparate impact discrimination, the defendant may rebut by challenging the plaintiff’s prima facie case. It may also rebut by arguing that the policy is a ______ ______ and is ______ to the _____.

Answer 10

Business necessity

Related to the job.

Question 11

What are the three (3) Section 703(h) exceptions to a claim for systemic disparate impact discrimination.

Answer 11

Professionally developed tests

Bona Fide Seniority Systems

Bona Fide Merit and Piecework Systems

Question 12

Under a claim for systemic disparate impact discrimination, it is not unlawful for an employer to give or act upon the results of a _____ ______ test.

Answer 12

Professionally developed

Question 13

Explain what a Bona Fide Merit and Piecework System is.

Answer 13

A system in which compensation is based on quantity and/or quality of work (e.g., more money for picking more apples).

Question 14

Under the ADEA, a defendant may rebut a claim of systemic disparate impact discrimination by proving . . . .

Answer 14

That a decision was based on “reasonable factors other than age.”

Question 15

If a defendant successfully shows a defense to a claim for systemic disparate impact discrimination, the plaintiff may respond by showing what?

Answer 15

That there is an alternative employment practice which achieves the employer’s goals but does not have the discriminatory impact.

Question 16

When the plaintiff attempts to rebut a defense by showing that there is an alternative employment practice which achieves the employer’s goals but does not have the discriminatory impact, what counts as an alternative employment practice (3 elements)?

Answer 16

One that serves the same purposes as the contested practice

But that is not discriminatory; AND

Is reasonable to expect the employer to use.