Also known as: disparate impact · disparate impact theory · disparate impact doctrine
Written by attorneys — see sources below.
A method of attempting to prove discrimination by showing that a facially neutral policy or practice produces a statistically disproportionate adverse effect on members of a protected class, though such evidence alone is insufficient without proof of discriminatory purpose.
Dominion Capital adopts a hiring rule granting automatic preference to applicants with prior military service. Destiny Davis, a highly qualified civilian woman, is passed over in favor of a less experienced male veteran. The policy produces markedly lower female hire rates, yet the company adopted it solely to reward military experience rather than to exclude women.
Dakota Industries uses an unstructured supervisor evaluation system for promotions. Female employees including Doris Duffy receive promotions at significantly lower rates than male colleagues. The company maintains no formal criteria and relies entirely on subjective judgments.
In 2001, three current or former female employees of Wal-Mart Stores, Inc.—Betty Dukes, Christine Kwapnoski, and Edith Arana—filed a lawsuit in the Northern District of California alleging that the company had discriminated against them and other women in pay and promotions. Wal-Mart, the nation’s largest private employer with approximately 3,400 stores across the country and more than one million employees, delegated pay and promotion decisions to local store managers who exercised broad discretion in a largely subjective manner. The plaintiffs claimed that this discretion was exercised disproportionately in favor of men, resulting in lower pay and fewer promotions for female employees. They sought to represent a class of approximately 1.5 million current and former female employees who had worked at any Wal-Mart domestic retail store since December 26, 1998. To support their motion for class certification, the plaintiffs presented statistical evidence from experts Dr. Richard Drogin and Dr. Marc Bendick showing pay and promotion disparities between men and women, anecdotal evidence consisting of about 120 affidavits from female employees describing discriminatory experiences at only 235 of the company's 3,400 stores, and the testimony of sociologist Dr. William Bielby who analyzed Wal-Mart’s corporate culture. Betty Dukes began working at a Pittsburg, California store in 1994 as a cashier and was later promoted to customer service manager before being demoted; she alleged retaliation and that male greeters were paid more. Christine Kwapnoski worked at Sam’s Club stores and claimed a male manager yelled at female employees and told her to “doll up.” Edith Arana worked at a Duarte, California store from 1995 to 2001. She was denied opportunities for management training despite repeated requests. The District Court certified the class under Federal Rule of Civil Procedure 23(b)(2), finding that the plaintiffs had presented significant evidence of a company-wide pattern of discrimination. The Court of Appeals for the Ninth Circuit, sitting en banc, substantially affirmed the certification order. The Supreme Court granted certiorari to review whether the class certification was consistent with Rule 23(a) and (b)(2).
View caseDawson Steel evaluates teller promotions through informal supervisor recommendations without written standards. Minority employees such as Daniel Diaz are promoted at substantially lower rates than white employees. The bank offers no objective performance metrics to justify the outcomes.
In August 1973 Clara Watson, who is black, was hired by Fort Worth Bank and Trust as a proof operator. In January 1976 she was promoted to teller in the Bank's drive-in facility. Between February 1980 and February 1981 Watson applied without success for four supervisory positions, each time losing out to a white applicant. The Bank employed roughly eighty people and had developed no precise formal criteria for the positions. It instead left promotion decisions to the subjective judgment of white supervisors who knew the candidates and the jobs. Watson filed a charge with the Equal Employment Opportunity Commission. After exhausting administrative remedies she sued the Bank in the United States District Court for the Northern District of Texas, alleging racial discrimination in hiring, compensation, placement, promotions, terminations, and other terms of employment. On her Rule 23 motion, the District Court certified a broad class of black applicants and employees, but later decertified it after finding no common question of law or fact. The employee subclass failed the numerosity requirement while Watson was not an adequate representative for applicants. The District Court then addressed Watson's individual promotion claims under the McDonnell Douglas and Burdine framework. It found that she had made out a prima facie case, but the Bank had articulated legitimate nondiscriminatory reasons for each decision. Watson had not proved those reasons pretextual. The court therefore dismissed the action. A divided Fifth Circuit panel affirmed the dismissal of Watson's claims and the class rulings, though it vacated the judgment as to the applicant class and remanded with instructions to dismiss those claims without prejudice. Watson contended that the District Court should have applied disparate impact analysis to the Bank's discretionary promotion practices. The Fifth Circuit held that Title VII challenges to discretionary promotion systems must be analyzed under the disparate treatment model. The Supreme Court granted certiorari to resolve the conflict among the circuits on that question.
View caseDixon Foods requires all applicants to pass a physical agility test designed for current employees. Disabled applicant Dylan Duffy fails at a markedly higher rate than nondisabled applicants. The state adopted the test to measure job-related fitness rather than to exclude disabled workers.
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 caseThe state courthouse requires all visitors to climb stairs to reach filing counters. Disabled plaintiff Diego Duarte cannot access the counters and must rely on staff assistance that is frequently unavailable. The rule was enacted to control building costs rather than to disadvantage disabled persons.
In August 1998, respondents George Lane and Beverly Jones filed this action against the State of Tennessee and several Tennessee counties. They alleged past and ongoing violations of Title II of the Americans with Disabilities Act. Both respondents are paraplegics who use wheelchairs for mobility. They claimed that they were denied access to and the services of the state court system by reason of their disabilities. Lane alleged that he was compelled to appear to answer a set of criminal charges on the second floor of a county courthouse that had no elevator. At his first appearance, Lane crawled up two flights of stairs to get to the courtroom. When Lane returned to the courthouse for a hearing, he refused to crawl again or to be carried by officers to the courtroom. He consequently was arrested and jailed for failure to appear. Jones, a certified court reporter, alleged that she has not been able to gain access to several county courthouses. As a result, she has lost both work and an opportunity to participate in the judicial process. Respondents sought damages and equitable relief. The State moved to dismiss the suit on the ground that it was barred by the Eleventh Amendment. The District Court denied the motion without opinion, and the State appealed. The United States intervened to defend Title II's abrogation of the States' Eleventh Amendment immunity. On April 28, 2000, after the appeal had been briefed and argued, the Court of Appeals for the Sixth Circuit entered an order holding the case in abeyance pending the Supreme Court's decision in Board of Trustees of Univ. of Ala. v. Garrett. In Garrett, the Supreme Court concluded that the Eleventh Amendment bars private suits seeking money damages for state violations of Title I of the ADA. It left open the question whether the Eleventh Amendment permits suits for money damages under Title II. Following the Garrett decision, the Court of Appeals, sitting en banc, heard argument in a Title II suit brought by a hearing-impaired litigant. The litigant sought money damages for the State's failure to accommodate his disability in a child custody proceeding. A divided court permitted the suit to proceed despite the State's assertion of Eleventh Amendment immunity. Following the en banc decision in Popovich, a panel of the Court of Appeals entered an order affirming the District Court's denial of the State's motion to dismiss in this case. The order explained that respondents' claims were not barred because they were based on due process principles. In response to a petition for rehearing arguing that Popovich was not controlling because the complaint did not allege due process violations, the panel filed an amended opinion. It explained that the Due Process Clause protects the right of access to the courts. It also explained that the evidence before Congress when it enacted Title II established that physical barriers in government buildings, including courthouses and in the courtrooms themselves, have had the effect of denying disabled people the opportunity to access vital services and to exercise fundamental rights guaranteed by the Due Process Clause. The panel did not, however, categorically reject the State's submission. It instead noted that the case presented difficult questions that cannot be clarified absent a factual record, and remanded for further proceedings. The Supreme Court granted certiorari and now reviews the case.
View caseA state agency adopts an English-only workplace rule for all internal communications. Employees whose primary language is Spanish, including Destiny Davis, receive discipline at higher rates than English-primary employees. The agency implemented the rule to promote workplace efficiency rather than to target any national-origin group.
In 1990, the State of Alabama amended its Constitution to declare English the official language of the state and enacted a statute providing that driver’s license examinations shall be given in English only. The Alabama Department of Public Safety accepted grants of financial assistance from the United States Department of Justice and Department of Transportation and implemented an English-only policy for its driver’s license examinations. Respondent Sandoval, a Spanish-speaking resident of Alabama who is not fluent in English, applied for a driver’s license but was unable to take the examination because of the policy. Sandoval brought suit in the United States District Court for the Middle District of Alabama against petitioner James Alexander, the Director of the Department of Public Safety, and other state officials. She alleged that the English-only policy violated Title VI of the Civil Rights Act of 1964 and the regulations promulgated thereunder by the Department of Justice. Sandoval sought to enjoin the policy and to require the State to administer the examination in Spanish. The District Court certified a class of all non-English-speaking persons in the State who have been or will be denied the opportunity to take the driver’s license examination because of the English-only policy. The District Court granted summary judgment in favor of the class. It held that the English-only policy violated the Department of Justice’s regulation implementing Title VI, which forbids recipients of federal funding from utilizing criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin. The court rejected the State’s argument that Title VI does not provide a private cause of action to enforce the regulation. It entered an injunction requiring the State to administer the driver’s license examination in Spanish to members of the class. The Court of Appeals for the Eleventh Circuit affirmed the District Court’s judgment. It held that Title VI’s implementing regulations may be enforced in a private action under 42 U.S.C. §1983 and that the regulation at issue was valid. Petitioners sought review in the Supreme Court of the United States, which granted certiorari to resolve a conflict among the Courts of Appeals on the question whether Title VI’s regulations may be enforced in a private action.
View caseNo. A facially neutral policy that produces a disproportionate effect on a protected group does not violate equal protection unless the plaintiff also proves that the policy was adopted with discriminatory purpose.
Supporting sources
Subjective decision-making systems that lack formal criteria may be analyzed under the disparate impact approach when they produce statistically significant disparities in hiring or promotion outcomes.
The plaintiff must demonstrate both a disproportionate adverse effect on a protected class and that the policy was enacted or maintained because of, not merely in spite of, that effect.
Supporting sources
Mere awareness of a disparate impact is insufficient. The decision-maker must have selected the policy at least in part because it would produce the adverse effect on the protected group.
Supporting sources
…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…