Disparate Impact Flashcards
(21 cards)
what is a disparate impact?
a practise that appears neutral on its face, but in effect is discriminatroy
What claims are avlaible to disparate impact?
title 7, ADA, ADEA
is sec1981 available to disparate impact?
No
give an example of a disparate impact claim
A prison requires all guards to be able to lift 50 pounds and consistently refuses to hire women because they believe women are not strong enough. Or, a fire department has an application aptitude test which consistently fails a disporotionate amount of African Americans.
When will an aptitude test be invalid and have a disparate impact?
An aptitude test that cannot be shown to relate to business necessity
how is disparate impact defined?
- If a group of over 80% of a protected class within the workforce is adversely affected by a employer practice, that is genrally held to be a disperate impact
- Smaller percentiges can still ocnstitue a disparate impact wher they are signifigent or where the meplyer discourages employment on the basis of protected grounds
- The 80% standard is generally considered a rule of thumb, not an absolute
What is the main challenge for plaintiffs in disparate impact cases?
Showing that the makeup of the employee pool does not match up the statistical reality in the workplace. Ex. a business only has 5% of the population, but there are 40% of qualified individuals in the local labour market
What is the disparate impact proof structure for title 7? - 3 things
A complaining party demonstrates that a respondent uses a particular
employment practice AND that particular practice causes a disparate
impact on the basis of race, color, religion, sex, or national origin; and
2. Burden shift to employer - Employer fails to demonstrate that the
challenged practice is job related for the position in question and
consistent with business necessity.
3. Plaintiff can still prevail by proving that as to the particular
employment practice, there is an alternative, less discriminatory option
and the employer refuses to adopt such alternative employment
practice. The method proposed by the plaintiff must be similar in costs
and burdens to the employer and be similarly effective.
When is disparate impact actionable?
When 80% of the workplace is affected.
Give an ex of the 80% disparate impact rule
- Ex 400 men apply, 300 are hired = 75%. 300 women apply and 150 are hired = 50%
o 50 divided by 75 = 67%. The treatment of dfemale applciats is disparate impact under the rule of thumb.
Is Disparate impact recognize in the ADEA? - Smith case
Yes, but its application is narrower - it requires
- A Reasonable Factor Other than Age
- If the planitff cannot point to a specifc test or policy that adversely affects them.
Is disparate imapct recongized under the ADA?
Disparate Impact is not recognized under the ADA, BUT efforts to avoid disparate impact claims can result in disparate treatmentcliams which the ADA does cover.
What is RFOA?
RFOA - reasonable facts other than age are legitimte actions - under ADEA claims - defence for ADEA claims
What is RFOA?
For an ADEA claim: so long as an employer has a reasonable motivation other than age - an adverse action is allowed. Smith case - this is where an older employee was fired because the employer didn’t want to pay the pension. This was deemed a legitimate other reason.
What must a court consider in the face of an RFOA defence?
Non-age factor that is objectively reasonable when viewed from the
position of a prudent employer mindful of its responsibilities under the
ADEA under like circumstances
* Extent which factor related to the employer’s stated business purpose;
* Factor accurately defined and applied fairly (supervisors trained etc.)
* Supervisor subjectivity limited in assessing employees
* Consideration employer gave to adverse impact of practice on older
workers
* Extent of harm to protected individuals – extent of injury, # of people
impacted, and steps taken to limit both.
Disparate impact and ADA?
The ADA prohibits the use of “qualification standards, employment
tests or other selection criteria that screen out or tend to screen
out an individual with a disability or a class of individuals with
disabilities unless the standard, test or other selection criteria, as
used by the covered entity, is shown to be job-related for the
position in question and is consistent with business necessity.” 42
U.S.C. § 12112(b)(6). Also the ADA requires that tests be
administered and selected “in the most effective manner to ensure
that, when such test is administered to a job applicant or employee
who has a disability that impairs sensory, manual, or speaking
skills, such test results accurately reflect the skills, aptitude, or
whatever other factor of such applicant or employee that such test
purports to measure, rather than reflecting the impaired sensory,
manual, or speaking skills of such employee or applicant (except
where such skills are the factors that the test purports to
measure).” 42 U.S.C. § 12112(b)(7).
Does allowing suprvisors vast discretion constitute disparate impact when those supervsors engage in discriminatory actions?
Where supervisors are afforded vast discretion does not infer that the company as a whole has discrimatroy policies. - Here, Walmart allowed supervisors discretion and their sueprvioros at some stores made discriminatory deciosns. Question was if that implicated the company as a while. court found that it did not.
What is the ADEA proof structure?
ADEA proof structure:
1. First, the plaintiff would be required to prove that a specific
practice creates a significant disparate impact based on a protected
trait (age)
2. Burden shifts to defendant/employer to establish that the practice
or policy is based on a reasonable factor other than age. This is now
an affirmative defense.
What are the 4 elements from the Walmart case that allows a class action to go forward for a protected trait?
What are the plaintiffs alleging? Is it discrimination for a company to be
aware of hiring and pay differences between men and women but not take
appropriate action to find out why they are happening or to correct them?
2. Is this case about class action certification or about substantive anti-
discrimination law?
3. If the plaintiffs are not able to proceed through a class action does this affect
the strength of their substantive claims? If one of the plaintiffs sues as an
individual do you think the court would allow the use of nationwide statistics?
4. Does the majority opinion present a different version of the facts than that
offered in the partial concurrence and dissent?
What is the title 7 disparate impact proof structure?
A complaining party demonstrates that a respondent uses a particular
employment practice and that particular practice causes a disparate
impact on the basis of race, color, religion, sex, or national origin; AND
2. Burden shift to employer - Employer fails to demonstrate that the
challenged practice is job related for the position in question and
consistent with business necessity.
OR
Alternatively, plaintiff can prove that as to the particular employment
practice, there is an alternative employment practice and the employer
refuses to adopt such alternative employment practice. The method
proposed by the plaintiff must be similar in costs and burdens to the
employer and be similarly effective
