When did the U.S. Supreme Court first recognize that Title VII included disparate impact claims?

The U.S. Supreme Court recognized that Title VII included disparate impact claims in its decision in Griggs v. Duke Power (1971; see LegalSpeak, p. 228). The case involved a claim by 13 African-American employees at Duke Power Co. who claimed that two requirements for transfer to a better division within in the company discriminated against them and others (they filed a class action suit on behalf of all African-American employees) on the basis of race. The employer—who years before had refused to hire African-Americans except for manual labor jobs—instituted two policies for transfer to the better divisions after the passage of Title VII. Any employee seeking transfer had to either have a high school education or have passed a general intelligence test.

Evidence in the case showed that neither requirement was imposed on white employees already within certain divisions. Evidence also established that neither requirement was substantially related to good job performance. For example, there were white employees who had no high school education or passed such an intelligence test who performed very well in these departments.

In oft-cited language, Chief Justice Warren Burger wrote: "The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited."

An example of a

An example of a "disparate impact" hiring policy would be requiring police officers to be of a certain height and weight that would discriminate against women (iStock).

Who was Griggs in the Griggs v. Duke Power case?

Willie S. Griggs was the lead plaintiff in the Griggs v. Duke Power (1971; see LegalSpeak, p. 228) case and an employee of the Duke Power company plant. He was listed first in the initial lawsuit, which is why the famous case bears his name.

What if an employer has multiple reasons for taking adverse action against an employee—a discriminatory reason and a lawful reason?

Title VII provides that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." This is sometimes referred to as a mixed-motive case. Under a mixed-motive case, an employer can try to show that it would have made the same employment decision absent the unlawful reason.

For example, let's say that an employee alleged she was fired for her sex. However, apparently there also was evidence that she had trouble getting along with her supervisor and other behavioral issues. This may qualify as a mixed-motive case. The employee must show that her sex was a motivating factor in the discharge decision. The employer must show that it would have made the same decision regarding the employee absent her sex—in other words that the employer would have fired her for her behavioral issues anyway. If the employer proves the same decision defense, it can prevent the plaintiff from collecting damages. However, the plaintiff may still be able to obtain attorneys' fees and injunctive relief (an order prohibiting the employer from doing something).

The U.S. Supreme Court recognized mixed-motive claims for discrimination in Title VII in the gender discrimination case of Price Waterhouse v. Hopkins (1989; see LegalSpeak, p. 229). Ann Hopkins sued Price Waterhouse after she did not make partner at the accounting firm. Hopkins introduced evidence of gender stereotyping in the workplace. However, the employer said that Hopkins was too brusque and had personality issues that motivated the decision in part. The question before the U.S. Supreme Court was how to deal with cases in which an employer had both a permissible and impermissible motive—a mixed-motive case.

Under a mixed-motive claim, a plaintiff must show that an illegitimate motive (gender discrimination) played a role in the employer's decision against the employee. If the employee meets this burden, the employer must then show that it would have made the same decision against the employee regardless of the bad motive.

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