Disparate Impact Theory Research Articles

When Home is a Living Hell

Low-income women experience a nightmarish victimization when they are sexually harassed by landlords in their homes, homes many are desperate to keep. The staggering lack of data on this issue means laws and courts have been slow to address this phenomenon. Although courts have relied primarily on a Title VII employment-based sexual harassment framework to address this issue, it does not go far enough in protecting women in their homes. The home and the workplace are inherently different and thus require a different legal approach to redress the issue. This comment examines sexual harassment in housing and why Texas women are particularly susceptible to it. This comment further advocates for courts to look to existing housing law and expand application of the Fair Housing Act’s disparate impact approach in addressing sexual harassment in housing to low-income women. Low- income women of color are the primary victims of sexual harassment in housing; this permits a gender and race-based disparate impact theory as another framework through which courts may craft a solution, though it too has its shortcomings. Additional measures, such as the expansion of federal law to cover sexual harassment in housing, and state-level policy changes that would penalize deviant landlords and property owners, would serve to empower and strengthen low- income Texas women without leaving entire subsections of the population behind. This comment further argues that holistic community-level action is not only desirable, but necessary to educate communities and provide low-income women increased access to the courts. Finally, the above suggested measures will do little to change the outlook for low-income women if states fail to address the underlying issue that makes the need for housing so desperate: the affordable housing crisis.

Towards a ‘Practical Freedom:’ Disparate Impact, Public Education, and the Thirteenth Amendment

Inequities for Black Americans, including educational ones, are often rooted in “neutral” policies — ones facially innocent, but effectively discriminatory. This Article establishes the Thirteenth Amendment as a viable alternative in anti-discrimination law for challenging such policies. Undoing these policies has traditionally been the work of the statutorily-based disparate-impact theory. But for a range of reasons, that theory’s success at bringing about enduring social change is stunted. The Thirteenth Amendment is rich legal ground into which we might instead sow new seed. The Amendment’s social and legislative histories and Supreme Court precedent establish that the Amendment was designed to eradicate social policies that entrench or perpetuate the vestiges of slavery, whether those policies are racially explicit or facially neutral. Accordingly, the Amendment overlaps with the disparate-impact theory’s original goal of remedying the present effects of past discrimination. This Article operationalizes the Amendment in this regard by applying it to a relatively popular context for disparate-impact challenges: school discipline policies. The views of the Amendment’s earliest advocates confirm that one of the most profound enactments of freedom for Black Americans was, among other things, obtaining an education. This Article is the first to explain why any education practice, like harsh school discipline policies, that discriminatorily denies access to public education also violates the Amendment’s conferral of meaningful freedom to Black Americans. This Article emphasizes the special role of Congress acting on its power under the Amendment to define the aspects of such freedom and outlines how Congress might do so. Direct congressional action under the Amendment is vital because it mitigates the difficulties of judicially enforced disparate-impact theory. Such action would also constitute an overdue re-conciliatory step towards directly confronting slavery’s legacy, as the Amendment vests in Congress a responsibility to scrutinize any lingering barriers to Black Americans’ acts of freedom, like obtaining an education. It outlining an education equity framework under the Thirteenth Amendment, the Article nods towards the Amendment’s enforcement possibilities as anchor for anti-discrimination law beyond public education.

Countenancing Employment Discrimination

Employing facial recognition technology implicates anti-discrimination law under Title VII of the Civil Rights Act when used as a factor in employment decisions. The very technological breakthroughs that made facial recognition technology commercially viable—data compression and artificial intelligence— also contribute to making facial recognition technology discriminatory in its effect on members of classes protected by Title VII. This Article first explains how facial recognition technology works and its application in employee background checks. Then, it analyzes whether the use of facial recognition technology in background checks violates Title VII under the disparate impact theory of liability due to the known issue of skewed data sets and disproportionate inaccuracy on some populations. The Article concludes by calling on the Equal Employment Opportunity Commission to issue specific guidance warning employers of impending liability under Title VII, including class action liability, due to the use of facial recognition technology, and to use its enforcement authority to file lawsuits against employers who continue to use the technology.

Diversity, disparate impact, and discrimination pursuant to Title VII of US civil rights laws

PurposeWhile the words diversity, disparate impact, and discrimination are commonly read and heard by working adults and professionals, they can at times be confusing and fearful to some managers. The purpose of this paper is to provide an overview of a specific aspect of US civil rights laws – the disparate impact theory. The authors provide an analysis based on the statute, case law interpreting, and applying the statute, administrative guidelines from the Equal Employment Opportunity Commission, as well as legal and management commentary. The paper illustrates the requirements of a plaintiff employee’s initial case based on the disparate impact theory. The challenging causation component which requires some degree of statistical evidence is given particular attention. Limitations to the paper are stated at the beginning; and recommendations to managers are explored and provided toward the end of the paper.Design/methodology/approachIt is a legal paper which covers all the laws related to discrimination based on disparate impact and disparate treatment theories. Actual court cases up until this month and Americans laws related to this concept are reviewed and critically discussed.FindingsThe salient feature of disparate impact is that this legal theory allows a plaintiff job applicant or employee to sustain a case of illegal discrimination without providing any evidence of a discriminatory motive. As opposed to the disparate treatment liability is imposed based on disproportionate adverse results and not discriminatory intent.Research limitations/implicationsThis paper deals with the disparate impact theory pursuant to Title VII of the Civil Rights Act. However, it must be pointed out that the disparate impact theory is also applicable to claims arising under the Americans with Disabilities Act and the Age Discrimination in Employment Act. Since the focus of this paper is Title VII federal and state constitutional issues, such as the applicability of the 14th Amendment’s Equal Protection clause that may arise in disparate impact cases involving government entities will not be addressed.Practical implicationsManagers and employees can protect themselves in the workplace from illegal discriminatory practices. Initially, employers and managers must be aware of the distinction between a disparate impact case and a disparate treatment case with the latter requiring evidence of intentional discrimination. Evidence, of course, can be direct or circumstantial or inferential. Whereas in a disparate impact case there is no intentional discrimination; and as such proof of discriminatory intent is not required. Rather, the employee has to present evidence that the employer’s neutral on-its-face employment policy or practice caused an adverse disproportionate impact on the employee as a member of a protected class.Social implicationsHuman resources professionals and managers must become educated in diversity laws in order to provide an inclusive workplace for all employees and candidates. Employers have legitimate areas of concern in hiring and promoting employees; and the courts are cognizant of employer responsibilities; and thus the employers must be able to show how specific knowledge, skills, education, training, backgrounds, as well as height, weight, strength, and dexterity are legitimate qualifications that directly relate to successful job performance.Originality/valueThis is an original paper by the authors.

Editor's Letter

Editor's Letter

Disparate Impact and the Limits of Local Discretion after <I>Inclusive Communities</I>

In upholding the disparate impact theory of liability under the Fair Housing Act (FHA), the Court simultaneously made sweeping pronouncements in favor of residential integration and issued safeguards protecting the legitimate exercise of local discretion in the area of housing policy. Some commentators see these pronouncements as irreconcilable. This Article harmonizes the Court’s competing pronouncements using history, precedent, and the Inclusive Communities opinion itself. The Court eases the tension between federal mandates and local prerogatives by articulating a vision of FHA disparate impact liability as a targeted “barrier removal” mechanism rather than a blunt instrument “displac[ing] valid governmental and private priorities.” As I have explored in earlier work, this is the vision largely implemented by the lower courts for forty years. Justice Kennedy cited this work in acknowledging that “the heartland of disparate-impact suits target[s] artificial barriers to housing.”In particular, the Court’s safeguards address three interrelated concerns implicating how disparate impact theory might curb the legitimate exercise of local discretion and lead to unintended consequences, particularly in the siting of affordable housing. The Court disapproves challenges to racial imbalances alone without identifying policies causing the imbalances; challenges based on second guessing valid local priorities; and “abusive” challenges to legitimate neighborhood revitalization efforts. Justice Kennedy’s opinion does not privilege local government discretion over fair housing objectives. It merely gives local governments running room to tackle the objective in a manner suited to the jurisdiction. Thus, the question is not whether local governments may work to overcome segregation, but how. This concept is reinforced by Justice Kennedy’s use of the term “valid” in referring to the governmental priorities requiring deference. A priority tending to perpetuate segregation and racial isolation cannot possibly be valid, under any construction of the Fair Housing Act text, purpose, regulations, and Inclusive Communities opinion. Moreover, revitalization activities are not immune from challenge if they perpetuate racial isolation and limit housing choices. Strategies consisting solely of placing low-income housing in distressed neighborhoods function as barriers to integration; the remedy for segregation is not more segregation. On the other hand, a city’s revitalization activities are consistent with the FHA if they expand housing choices and ultimately serve as redress for practices that have perpetuated racial isolation. The only principled reading of Justice Kennedy’s opinion, therefore, is that the exercise of local discretion to overcome housing barriers and “mov[e] the Nation toward a more integrated society” is legitimate and entitled to deference. Local discretion used to erect housing barriers and perpetuate racial isolation, even under the auspices of “community revitalization,” is not legitimate and is subject to challenge.

No Steps Forward, Two Steps Back: The Fallacy of Trying to “Eradicate” Adverse Impact?

Within the context of the 50th anniversary of the Civil Rights Act of 1964, and specifically as it pertains to the tenets of Title VII, Lindsey, King, Dunleavy, McCausland, and Jones (2013) state: “This focal article raises and addresses critical issues regarding a yet unanswered question: How can organizational researchers and practitioners contribute to the ultimate goal of eradicating employment discrimination” (p. 391). We argue that in the context of employment testing and selection, at least as per the disparate impact theory of discrimination, this question is the wrong one—certainly as framed by Lindsey et al. To the contrary, instead of holding up the "eradication of employment discrimination" as our ultimate goal, perhaps we should continue to focus on the development, implementation, and support of the best (i.e., most job-related and valid) employment practices possible.

Chasing the Title VII Holy Grail: The Pitfalls of Guaranteeing Adverse Impact Elimination

Purpose Title VII of the Civil Rights Act of 1964 provided industrial/organizational (I/O) psychologists with a unique role as professional test developers and consultants involved in assisting organizations in establishing the job-relatedness/validity defense to charges of discrimination, specifically charges based on an adverse or disparate impact theory. However, these activities have transmogrified into the fairly common occurrence of public municipalities and organizations demanding the reduction or absence of adverse impact as part of the scope of work or contracts and for practitioners and consultants to guarantee adverse impact reduction or elimination a priori. Plaintiffs and their experts also routinely argue that the observed adverse impact could have been allayed or eliminated if the defendant had only just used alternative testing methods. This then begs the following question: “Are there well established techniques and procedures that can reduce, minimize, or eliminate adverse impact in a predictable, generalizable, and replicable fashion in the same manner that we might guarantee validity?” The present paper seeks to answer this question.

Encouraging Debate on the Uniform Guidelines and the Disparate Impact Theory of Discrimination

This response summarizes commentaries on the M. A. McDaniel, S. Kepes, and G. C. Banks (2011) article, which argued that the Uniform Guidelines on Employee Selection Procedures are a detriment to the field of personnel selection. Several themes were present in the commentaries. No compelling arguments were presented to dispute the assertion that mean racial differences in job-related attributes will be with us for a long time. However, compelling arguments were made that the disparate impact theory of discrimination is a more central issue for personnel selection than the Uniform Guidelines. Similarly, arguments were presented that the assessment of adverse impact is problematic and that expert witness testimony needs improvement. Areas in need of further investigation were also identified. Finally, the role of the Society of Industrial and Organizational Psychology (SIOP) in guiding regulatory, legislative, and court actions was considered.

The Telltale Sign of Discrimination: Probabilities, Information Asymmetries, and the Systemic Disparate Treatment Theory

The systemic disparate treatment theory of employment discrimination is in disarray. Originally formulated in United States v. International Brotherhood of Teamsters, the systemic disparate treatment theory provides plaintiffs with a method for creating an inference of unlawful discriminatory intent if plaintiffs can first present sufficient statistical evidence establishing that the employer was engaged in a "pattern or practice" of discrimination. While the Court and scholars have recently given substantial attention to the disparate impact theory, they have not adequately analyzed the contours of the systemic disparate treatment theory. For example, there are currently disputes about whether the systemic disparate treatment theory can be utilized by plaintiffs in (1) ADEA cases, (2) ADA cases, (3) hostile work environment cases, and (4) private individual (non-class) discrimination cases brought under any of the antidiscrimination statutes. The development of a coherent approach to systemic disparate treatment law is becoming increasingly important. Since 2006, the EEOC has made pursuit of its "Systemic Initiative" a top priority in its enforcement strategy. Thus, difficult questions about the application of the systemic disparate treatment theory will continue to surface. This Article takes a first step toward bringing order to the systemic disparate treatment theory. Drawing upon economic models of optimal allocation of burdens of proof in civil litigation and an application of Bayesian probability analysis, this Article argues that the proper extent of the systemic disparate treatment theory depends on three critical considerations: (1) the background prevalence (or prior probability) of the type of discrimination alleged; (2) the relative strength of the evidentiary signal provided by the proffered statistical evidence; and (3) the parties' relative access to evidence on the element of discriminatory intent. Applying the principles developed here, this Article concludes that the Teamsters systemic disparate treatment theory should be available as a method of proof for plaintiffs in ADEA, ADA, and individual (non-class) cases, but not in hostile work environment cases.

Bizarro Statutory Stare Decisis

In Smith v. City of Jackson, the Supreme Court applied to the Age Discrimination in Employment Act one of its decisions interpreting Title VII of the 1964 Civil Rights Act, which Congress had overridden with the Civil Rights Act of 1991. It treated Wards Cove Packing Co. v. Atonio, dealing with disparate impact theory and burdens of proof, as a binding interpretation of the ADEA, despite that Congress expressed disapproval of Wards Cove. The Court relied on two interpretive approaches to arrive at this result: the presumption that identical language in the ADEA and Title VII should be interpreted consistently and the strong presumption of statutory stare decisis. This convergence of circumstances led to the odd result of duplicating the congressionally disfavored Wards Cove interpretation. I use the comic book story of Bizarro, Superman's imperfect duplicate, as an allegory for the Smith Court's flawed invocation of statutory stare decisis to duplicate Wards Cove, labeling it Bizarro statutory stare decisis. None of the justifications for the regular presumption of statutory stare decisis supports the result in Smith. Furthermore, Bizarro statutory stare decisis interferes with the proper balance of power between Congress and the Court and implicates the countermajoritarian difficulty of elevating the Court's interpretations over Congress's expressed preferences. The paper explores other contexts in which Bizarro statutory stare decisis could wreak havoc. Finally, I present an alternative to Bizarro statutory stare decisis. In situations like Smith, the Court should not treat an overridden interpretation as binding precedent, but should interpret the statute before it as a matter of first impression. In doing so, an overridden interpretation should not be duplicated without clear textual, purposive, or historical evidence that the overridden interpretation is more appropriate this time around. The paper concludes by applying this alternative to Smith and explaining why Wards Cove should never have been revived.

Hiring Practices of African American Males in Academic Leadership Positions at American Colleges and Universities: An Employment Trends and Disparate Impact Analysis

This study examined the status of African American males in academic leadership positions at American colleges and universities in comparison with other males (e.g., Asian). Guided by disparate impact theory, descriptive trend analyses and impact ratios were computed using the 1993 and 1999 National Study of Postsecondary Faculty (NSOPF). These national-level data demonstrated that, although White males continue to hold the overwhelming majority of academic leadership positions, African American males have made modest advancements in upper level administrative positions at specific types of higher and postsecondary education institutions (e.g., 2-year and private institutions). More specifically, these results suggested that a disparate impact exists between the hiring of African American males and White males in academic leadership positions.

Hiring Practices of African American Males in Academic Leadership Positions at American Colleges and Universities: An Employment Trends and Disparate Impact Analysis

This study examined the status of African American males in academic leadership positions at American colleges and universities in comparison with other males (e.g., Asian). Guided by disparate impact theory, descriptive trend analyses and impact ratios were computed using the 1993 and 1999 National Study of Postsecondary Faculty (NSOPF). These national-level data demonstrated that, although White males continue to hold the overwhelming majority of academic leadership positions, African American males have made modest advancements in upper level administrative positions at specific types of higher and postsecondary education institutions (e.g., 2-year and private institutions). More specifically, these results suggested that a disparate impact exists between the hiring of African American males and White males in academic leadership positions.

The Future of Disparate Impact in Britain and the United States: Shoot the Wards Cove Quota Myth and Recognize Plantation Economy Cases

Librarians wanted - applicants must be over six feet tall is a subtle way of achieving a discriminatory goal. Since the seminal case of Griggs v Duke Power , decided by a unanimous Supreme Court in 1971, the United States judiciary has, using disparate impact theory, recognised such cases as legally actionable. Case law also recognised some (but not all) discriminatory subjective hiring practices (such as excessive discretion given to one manager), but stopped short, in Wards Cove v Atonio, of recognising cases, where there is a racially stratified workforce with no identified specific cause. In the meantime, the British Parliament followed Griggs by outlawing indirect discrimination in the Sex Discrimination Act 1975 and the Race Relations Act 1976. However, after some deference to the spirit of Griggs in the early years, the British judiciary gave the statutory definition the narrowest interpretation. So much so, that in recent years, a new statutory definition was introduced to reverse the effect of these cases. In liberalising the law, the new definition opens the way to challenge subjective hiring practices, and possibly the plantation economy cases that were rejected in Wards Cove. For the first time British anti-discrimination law has the opportunity of advancing on its American model. Central to this is overcoming the objections made in Wards Cove . The underlying and surviving reasoning of the Wards Cove decision is that to recognise these cases would force employers to adopt quotas. This paper will show that all discriminatory subjective hiring practices should be actionable and that the Wards Cove quota reasoning is technically flawed and a fiction. Further, it will demonstrate positive reasons why plantation economy cases should be recognised.

Re-reviving Disparate Impact

Rejecting the Supreme Court's attempt in Wards Cove to cut back the disparate impact theory of liability under Title VII, Congress passed the Civil Rights Act of 1991 codifying the doctrine. Although that Act was the culmination of vibrant national debate, there has been surprisingly little implementation of the doctrine since its passage. During the same period, however, there has been increasing scholarly consensus both that remains an important national problem and that the legal tools to address it are wholly inadequate. While the 1991 resurrection of disparate impact might have seemed the answer, the attention of the commentators returned instead to disparate impact's sibling, disparate treatment liability. On the disparate treatment front, there has been change but perhaps not progress. After thirty years of wrestling with the McDonnell Douglas Corp. v. Green grand experiment with proof structures for proving intentional discrimination, the Court's 2003 decision in Desert Palace, Inc. v. Costa circled back to the obvious and simply asked whether there was sufficient evidence that prohibited ground was a motivating factor for an employment practice. While Desert Palace may make proof structures obsolete, it is doubtful that its sufficient evidence approach will result in more verdicts for victims of discrimination. The same judges whose summary judgments and judgments as matter of law have for years reflected profound skepticism about the prevalence of in the workplace will continue to keep the gates, and juries may also be reluctant to find violations because of common perceptions that is largely thing of the past. The time, then, is ripe for reconsideration of the question of in an effort to define the proper role of the two theories of liability - disparate treatment and disparate impact. This reassessment is in large part responsive to the new wave of research by scholars such as Linda Krieger and Tristin Green. Speaking in terms of cognitive bias and workplace dynamics they argue that is both more pervasive and less conscious today than was true when Title VII was enacted in 1964. While these commentators have rejected disparate impact solution in favor of modifying disparate treatment, the history of that paradigm hardly justifies optimism. Consequently, this Article argues for expanded use of disparate impact as tool to address both old- and new-fashioned and develops the justifications and mechanisms for so doing. While more robust use of disparate impact forfeits the moral high ground that validates the core disparate treatment prohibition, it argues that those heights have already been eroded by scholarship such as Krieger's and Green's. Further, since disparate impact functions not as an absolute prohibition but rather as means of balancing adverse effect against business justifications, it is more attractive avenue to address present-day subtle discrimination than radically expanding the disparate treatment model.

The Status of the Uniform Guidelines on Employee Selection Procedures

This article examines the legal status of the Uniform Guidelines on Employee Selection Procedures from the perspectives of judicial opinions and race-norming provisions of the Civil Rights Act of 1991. Specifically, the analysis provides a discussion of important U.S. Supreme Court’s decisions with special emphasis on their relevance for disparate impact theory. Because the 1991 Civil Rights Act has altered the selection procedures somewhat, the article offers implications of these changes for personnel managers or specialists and recommends modification of the Uniform Guidelines.

Disparate Impact and the Quota Debates: Law, Labor Market Sociology, and Equal Employment Policies

Bringing sociological theory and research to bear on the “quota debates” dogging discussion of federal civil rights legislation in the early 1990s, this article highlights sociology's role in shaping employment law and shows how apparently technical legal arguments about allocating burdens of proof affect labor market resource allocation among the classes, races, and genders. Contrasting institutional-sociological with liberal-legal concepts of discrimination, the article shows why disparate impact theory has been the most sociological approach to Title VII enforcement. It also shows how disparate impact—a theory and method for establishing legally cognizable employment discrimination injurious to women and minorities—is, and is not, related to affirmative action—a policy encompassing a broad range of procedures intended to provide positive consideration to members of groups discriminated against in the past. Finally, a competing incentive framework is used to show that, although disparate impact creates some incentives for employers to adopt quota hiring, such incentives are counter-balanced by major incentives working against race- and gender-based quotas. Major counterincentives stem from disparate impact itself, from other aspects of equal employment law, and from organizational goals shaping business response to the legal environment.

What are the differences between disparate treatment and disparate impact?

Defines the two concepts before discussing disparate impact theory which is not cognisable under the US Age Discrimination in Employment Act (ADEA) through the use of case law. Lists the protected categories which are covered by disparate treatment and disparate impact law and cites the reasons under which a complaint can be made. Provides a suggested structure for addressing such claims within the company.

Defining "Otherwise Qualified Applicants": Applying an Antitrust Relevant-Market Analysis to Disparate Impact Cases

A plaintiff making a Title VII disparate impact claim must show that an employer's hiring practice, test, or requirement tends to exclude members of a protected class.' In other words, the plaintiff must show that the practice in question causes the employer's workforce to have a smaller percentage of minorities than the qualified applicant pool.2 Because the result of this comparison rests on the question of who is a qualified applicant, both plaintiffs and defendants seek to shape the qualified applicant pool determination in their favor. The disparate impact plaintiff would like to show that the qualified applicant pool contains many persons in the protected class. Assuming the employer's workforce does not contain many such persons, such a showing allows the plaintiff to establish the prima facie case of discrimination easily under a disparate impact theory. In contrast, the defendant would like to show that the minority composition of the qualified applicant pool perfectly mirrors the minority composition of

Eleventh Circuit Denies Claim Under PDA

The United Court of Appeals for the Eleventh Circuit, in Amstrong v. Flow ersffospital, Lnc. (33 F.3d 1308 (11th Cir. 1994)), held that a hospital's termination of a pregnant employee for refusal to treat an HIV-positive patient did not violate the Pregnancy Discrimination Act (PDA), based on either the disparate treatment or the disparate impact theory. As an employer, a hospital is not required to make policies specifically addressing the needs of pregnant employees and is not to be held liable for discrimination absent a showing of differential treatment based on the facial intent of employer policies or on actual impact through policy application. Hence, although women cannot be forced to decide between employment and pregnancy, they will not be afforded special treatment based on their pregnancy.Pamela Armstrong worked for Southeast Alabama Medical Center (SAMC). After one year, Armstrong took a position with the Home Care Services (HCS) division of Flowers Hospital.