Also known as: adverse impacts · disparate impact
Written by attorneys — see sources below.
The adverse effect of a facially neutral practice that disproportionately harms members of a protected class such as race, sex, national origin, age, or disability. Discriminatory intent is not required to establish the effect, though business necessity may justify the practice in employment settings.
State hiring rules give preference to veterans for civil service jobs. Ariana Azizi, a qualified non-veteran woman, ranks lower than male veterans with lesser qualifications and is passed over. The preference produces a clear statistical shortfall for women even though the rule is neutral on its face.
A trucking company maintains a seniority system that requires new hires to start in lower-paying departments. Andrew Avery, a Black applicant, shows that the system blocks minority workers from higher-paying roles at rates far exceeding their share of the applicant pool.
The United States brought an action in a Tennessee federal court against T. I. M. E.-D. C., Inc., a common carrier of motor freight with nationwide operations. The complaint charged discriminatory hiring, assignment, and promotion policies against Negroes at its Nashville terminal. Almost three years later, the Government filed a second action in a Texas federal court against the company. It alleged a pattern and practice of employment discrimination against Negroes and Spanish-surnamed persons throughout the company's transportation system. The International Brotherhood of Teamsters was joined as a defendant. The two actions were consolidated for trial in the Northern District of Texas. The central claim in both lawsuits was that the company had engaged in a pattern or practice of discriminating against minorities in hiring so-called line drivers. Those Negroes and Spanish-surnamed persons who had been hired were given lower paying, less desirable jobs as servicemen or local city drivers. They were thereafter discriminated against with respect to promotions and transfers. The complaint also challenged the seniority system established by the collective-bargaining agreements between the employer and the union. The Government sought a general injunctive remedy and specific make-whole relief for all individual discriminatees. The cases went to trial. The District Court found that the Government had shown by a preponderance of the evidence that T. I. M. E.-D. C. and its predecessor companies were engaged in a plan and practice of discrimination in violation of Title VII. The court further found that the seniority system contained in the collective-bargaining contracts between the company and the union violated Title VII because it operated to impede the free transfer of minority groups into and within the company. With respect to individual relief the court accepted the Government's basic contention that the affected class of discriminatees included all Negro and Spanish-surnamed incumbent employees who had been hired to fill city operations or serviceman jobs at every terminal that had a line-driver operation. The Court of Appeals for the Fifth Circuit agreed with the basic conclusions of the District Court. It held, however, that the relief ordered by the District Court was inadequate. The Court of Appeals remanded the case to the District Court to hold the evidentiary hearings necessary to apply its remedial principles. The Supreme Court granted both the company's and the union's petitions for certiorari.
View caseAn employer fires Antonio Alvarado after learning he is transgender. The policy is written in sex-neutral terms yet produces markedly different outcomes for employees whose gender identity does not match their birth-assigned sex.
The three cases consolidated before the Supreme Court arose when employers fired long-time employees shortly after the employees revealed their homosexual or transgender status. Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate whose leadership earned the county national awards. After a decade with the county, Bostock began participating in a gay recreational softball league. Influential community members then made disparaging comments about his sexual orientation, and he was fired for conduct unbecoming a county employee. Donald Zarda worked as a skydiving instructor at Altitude Express in New York for several seasons. After mentioning that he was gay, he was fired days later. Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Michigan, presenting as male when hired. After two years she began treatment for gender dysphoria and wrote a letter stating she planned to live and work full-time as a woman. The funeral home fired her before she left for vacation. Each employee sued under Title VII of the Civil Rights Act of 1964 alleging unlawful discrimination on the basis of sex. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and dismissed Bostock's suit as a matter of law. The Second Circuit allowed Zarda's claim to proceed on the ground that sexual orientation discrimination violates Title VII. The Sixth Circuit reached the same conclusion in Stephens's case regarding transgender status. Both Zarda and Stephens passed away during the proceedings, but their estates continued to press the claims. The Supreme Court granted certiorari to resolve the disagreement among the courts of appeals over the scope of Title VII's protections for homosexual and transgender persons.
View caseA city fire department uses a written exam for lieutenant promotions. Amelia Amari and other minority candidates pass at rates below four-fifths of the highest-scoring group. The city discards the results to avoid the statistical disparity.
In 2003, the City of New Haven hired Industrial/Organizational Solutions, Inc. to develop and administer promotional examinations for lieutenant and captain positions in its fire department pursuant to a collective-bargaining agreement that required a written component weighted at 60 percent and an oral component weighted at 40 percent. IOS performed job analyses that deliberately oversampled minority firefighters to avoid unintentional bias favoring white candidates. The examinations were administered in November and December 2003. Seventy-seven candidates completed the lieutenant examination. Forty-one candidates completed the captain examination. The results showed pass rates of 58.1 percent for white candidates, 31.6 percent for Hispanic candidates, and 31.6 percent for black candidates on the lieutenant exam. Pass rates on the captain exam were 64.3 percent for white candidates, 37.5 percent for Hispanic candidates, and 0 percent for black candidates. Under the rule of three, the top ten candidates eligible for lieutenant promotion were all white. The top nine candidates eligible for captain promotion were seven whites and two Hispanics. After the results were released, the City held five public hearings before its Civil Service Board between January and March 2004. At those hearings, IOS vice president Chad Legel described the test-development process. Testing consultant Christopher Hornick criticized the 60/40 weighting and recommended assessment centers. Retired fire captain Vincent Lewis reviewed the content. Boston College professor Janet Helms discussed possible cultural bias in the job-analysis questionnaires. City officials including corporation counsel Thomas Ude and human-resources director Tina Burgett urged non-certification on the ground that the statistical disparity would expose the City to liability. Several candidates who had passed the exams urged certification. The Board deadlocked 2-2 and declined to certify the results. Seventeen white firefighters and one Hispanic firefighter who had passed the examinations sued the City, Mayor John DeStefano, and other officials in the United States District Court for the District of Connecticut, alleging violations of Title VII and the Equal Protection Clause. The District Court granted summary judgment for the defendants. The Court of Appeals for the Second Circuit affirmed in a per curiam opinion. The Supreme Court granted certiorari.
View caseA state agency requires physical agility tests for all job applicants. Adam Anderson, who uses a wheelchair, cannot complete the test and is rejected. The test screens out a far higher percentage of applicants with disabilities than those without.
Patricia Garrett, a registered nurse, served as Director of Nursing for OB/Gyn/Neonatal Services at the University of Alabama in Birmingham Hospital. In 1994 she was diagnosed with breast cancer and underwent a lumpectomy, radiation treatment, and chemotherapy that required substantial leave from work. Upon returning in July 1995, her supervisor informed her that she would have to relinquish the director position, leading Garrett to apply for and accept a transfer to a lower-paying nurse manager role. Milton Ash worked as a security officer for the Alabama Department of Youth Services. At the outset of his employment, Ash notified the department of his chronic asthma and, on his doctor's recommendation, requested modifications to minimize exposure to carbon monoxide and cigarette smoke. After later being diagnosed with sleep apnea, Ash sought reassignment to daytime shifts pursuant to medical advice. The department denied all requested accommodations. Shortly after Ash filed a discrimination claim with the Equal Employment Opportunity Commission, his performance evaluations declined below previous levels. Garrett and Ash filed separate lawsuits in the United States District Court for the Northern District of Alabama, each seeking money damages under Title I of the ADA against their state employers. The state defendants moved for summary judgment, asserting that the ADA exceeds Congress's authority to abrogate Eleventh Amendment immunity. In a single opinion, the district court granted the motions and dismissed both cases. The cases were consolidated on appeal to the Eleventh Circuit, which reversed based on its prior decision in Kimel v. State Board of Regents holding that the ADA validly abrogates state immunity. The Supreme Court granted certiorari to resolve a split among the courts of appeals regarding whether individuals may sue states for money damages in federal court under the ADA.
View caseA publisher adopts an editorial policy that applies the same verification standards to all stories. Ava Adebayo, a public-figure plaintiff, shows that the policy produces far higher liability exposure for certain demographic groups of sources even though the rule itself contains no group-based language.
In 1968, Chicago police officer Richard Nuccio shot and killed a youth named Nelson. State authorities prosecuted Nuccio and obtained a conviction for second-degree murder. The Nelson family retained petitioner Elmer Gertz, a Chicago attorney, to represent them in civil litigation against Nuccio. Respondent Robert Welch, Inc., publishes American Opinion, a monthly magazine expressing the views of the John Birch Society. In March 1969, the magazine published an article titled "FRAME-UP: Richard Nuccio And The War On Police." The article accused Gertz of participating in a Communist conspiracy to discredit local law enforcement, described him as a "Leninist" and "Communist-fronter," and claimed he had been an officer of the National Lawyers Guild, which it portrayed as a Communist organization involved in planning attacks on Chicago police during the 1968 Democratic Convention. The article contained numerous inaccuracies, including the false implication that Gertz had a criminal record. Gertz had served as an officer of the National Lawyers Guild approximately fifteen years earlier but had no involvement in planning the 1968 demonstrations. He had never been a member of the Marxist League for Industrial Democracy or the Intercollegiate Socialist Society. The managing editor of American Opinion made no effort to verify the charges against Gertz before publication and appended an editorial introduction stating that the author had conducted extensive research. Gertz filed a diversity action for libel in the United States District Court for the Northern District of Illinois. The district court ruled that the statements constituted libel per se under Illinois law. After a trial, the jury awarded Gertz $50,000 in compensatory damages. The district court later entered judgment for the defendant notwithstanding the verdict, applying the New York Times standard. The Court of Appeals for the Seventh Circuit affirmed. The Supreme Court granted certiorari to review the application of constitutional standards to defamation of a private individual.
View caseNo. The Equal Protection Clause requires proof of discriminatory purpose in addition to a statistical disparity. A facially neutral practice that produces an adverse impact on a protected class is constitutional unless the plaintiff shows the government adopted or maintained the practice because of its effect on that class.
Supporting sources
Plaintiffs typically compare pass rates or selection rates across protected groups. The four-fifths rule treats a selection rate for one group that is less than 80 percent of the rate for the highest-scoring group as evidence of adverse impact.
Once the plaintiff establishes adverse impact, the employer must prove the practice is job-related and consistent with business necessity. The plaintiff may then show that an alternative practice would serve the employer's needs with less discriminatory effect.
…their argument that the University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy. We must therefore conclude that…