When a federal court dismissed a disparate impact discrimination case, the EEOC got egg on its cheeks. A large percentage of the discrimination cases we see involve disparate treatment – good old-fashioned, intentional discrimination. More subtle and with wider impact is discrimination based on disparate impact. Disparate impact discrimination involves employment practices that are unintentional and neutral on their face in treating different groups, but land more harshly on one protected group – usually based on race, sex, or age than it may another group. While bad attitude – intent (“animus”), is part of the proof of disparate impact, discriminatory motive is not a required part of such cases. However, proof of discriminatory practices in hiring needs more than an expert’s ‘junk’ science.
The Equal Employment Opportunity Commission (EEOC) discovered this in an embarrassing United States 6th Circuit Court Opinion reported this April by the Ohio Employer’s Law Blog. The Court threw out a case against Kaplan Higher Learning, where the EEOC used poorly supported expert testimony. It had challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race.
The blog points out, however, that “Employers should not take this case as a license to deploy screening practices that might disparately impact applicants based on race.”*
This advice is particularly good in view of damages that the EEOC may seek from an offending employer, frying it up far more than an egg adornment when the EEOC gets its expert testimony right the next time! Lessons: One, consider the benefit of reviewing background checks and related practices. Two, While disparate impact cases may be hard to prove without good statistics, it may make sense to call us if your hiring / promotion practices may have a greater impact on a protected group.
This is apt advice for us in the Commonwealth, based on a 2012 case, Lopez v. Commonwealth** involving a challenge of promotional practices. There are few cases here on disparate impact claims. Our Supreme Judicial Court interpreted M.G.L. c. 156B to include disparate impact claims where motive and bad intent are absent by definition or did it? The claim was that an agency knowingly created and administered exams on which African-American and Hispanic police officers performed disproportionately poorly compared to their non-minority counterparts. The Commonwealth argued that the term “interfere” in [Ch. 156B] § 4(4A) covers only acts specifically undertaken with the intent to deprive a person of a protected right. Notice the following legal double negatives and you can understand why lawyers seem to be a gloomy lot!! The Court said: “However, it is not necessary that a plaintiff allege that such interference not only was intentional, but was undertaken with a specific intent to discriminate. It laid down the law for a claim under M.G.L. c. 156B, § 4(4A) based on a disparate impact theory of liability. A plaintiff must be able to establish that a defendant (1) used specific employment practices or criteria knowing they were not reasonably related to job performance; and (2) knew that the practices or criteria had a significant disparate impact on a protected group. Does that last sound like intent? Aren’t we usually seen to intend what we know and do? Private employers must also be wary of practices like those attacked in Lopez and challenged by the EEOC in the Kaplan case. The agency will wipe off the eggs on its cheeks and find and prepare better expert testimony next time with the statistics to show disparate impact discrimination. Feel free to call us if you need help with any of the employment or business issues discussed in our blog entries or on website.
**Lopez v. Commonwealth, 463 Mass. 696, 978 N.E.2d 67 (Mass., 2012)