Disparate Impact

Disparate Impact

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Disparate Impact
Disparate Impact arises when an employer's practices unintentionally excludes a protected class disproportionately (Player, Shoben and Lieberwitz, 1995). A "protected class" is a group of people, with common characteristics, which Congress has determined must be protected from inequality ("On-the-Job Discrimination: Gender Discrimination," 2004). This paper will analyze the landmark disparate impact case of Griggs v. Duke Power Co. (401 U.S. 424, 1971) from its beginning to its conclusion in the Supreme Court. Included will be the facts of the case and the issues detailed, as well as the history of the case from initial filing to final ruling.
Background
A class action suit was brought against Duke Power Company by thirteen of its black workers in the Dan River Stream Station located at Draper, North Carolina. Out of five departments, black employees were only hired into the Labor Department. These workers charged that they were being disqualified for job promotions and assignments based on the company's policies requiring a high school diploma and passing two professionally prepared aptitude tests. The petitioners argued that white employees who were hired before the high school education requirement was implemented still received promotions and were scored satisfactorily, but their black counterparts did not receive the same "grandfather" exception. Also noted was the highest paid black made a lower wage than the lowest paid white employee in any of the other four departments.
The case elaborated on the previous requirements as well as the "current" policies. In 1955, Duke Power began requiring a high school diploma for first assignment to all departments except the Labor Department, which was manned by black workers, as well as for any transfers from the Coal Handling Department to any of the three remaining "inside" departments. The three "inside" departments were Operations, Maintenance, and Laboratory. On July 2, 1965, Title VII's implementation date, Duke Power added that in addition to the high school diploma policy, employees had to pass two professionally prepared tests in order to be promoted or change departments. In September of the same year, the company allowed employees in the Labor and Coal Handling departments without a high school diploma, but who passed the two tests, to transfer to another "inside" department.

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The two tests used were the Wonderlic Personnel Test and the Bennett Mechanical Comprehension Test. Neither of these tests measured the employee's ability to learn a particular job, however the required scores the company used for hiring and transfers were a mirror of the national average for high school graduates.
Issues Under Dispute
The issues presented to the Middle District Court, and subsequently to the Supreme Court, were of discrimination. The lower courts had to address whether Title VII of the Civil Rights Act of 1964 protected employees against being required to have a high school diploma or passing standardized tests as means of denying employment and/or promotions. As quoted from the text Employment Discrimination Law: Cases and Materials, the lower courts had to decide whether it was lawful for an employer to require either the diploma or the tests if:
1) Neither showed to be extensively related to successful job performance
2) Both requirements functioned to disqualify black employees at a considerably higher rate than white employees
3) Only white employees formerly held the jobs as a past practice of preference given to white employees over black employees (Player, Shoben and Lieberwitz, 1995).
The Court's Rulings and Reasoning
The Middle District Court Of North Carolina in Greensboro, North Carolina, dismissed the complaint, citing Duke Power's past injustice of racial discrimination before the Title VII of the Civil Rights Act of 1964 could not receive corrective action after the fact under the then-current Act. The District Court said that it found no intentional continuing discrimination. The petitioners appealed the case to the Court of Appeals.
The Court of Appeals decision partially affirmed and partially reversed the District Court's decision. The Court of Appeals affirmed that there was no showing of a "discriminatory purpose" in the adoption of the diploma and test requirements, and that the policies were permitted under the Act since they were not shown to be job-related. It reversed the District Court's decision that the lingering discrimination from prior employment practices was protected from corrective action, but concluded that there was neither racial purpose nor offensive objective in the implementation of the questioned policies and stated that both white and black employees had been subjected to the policies fairly. The case was appealed to the Supreme Court and the higher court granted the writ.
The Supreme Court decision was precedent setting. It decided that the employer was prohibited by the Act from: both requiring a high school education and/or requiring passing marks on standardized tests as a condition of initial employment or transfers to other jobs, where neither policy was shown to " . . . be significantly related to successful job performance (Player, Shoben and Lieberwitz, 1995);" both requirements operated to disqualify black employees at a much higher rate than their white counter parts; and the fact that the questioned positions had only been filled by white employees in the past, giving preference over their black counterparts. The ruling went on to cite the inferior education of blacks as opposed to whites and the (unintentional) discrimination the policies where imposing on the black workers at the Duke Power Company.
This ruling held as a precedent until, in 1989, the Supreme Court decided in Wards Cove Packing Co. v. Atonio (490 US 642) that burden was on the employee and not on the employer to show that the discriminating policy was not job-related. The dissenting Justices objected that the majority opinion signified a considerable "retreat" from Griggs. In response to the dissenting Justices, Congress enacted the Civil Rights Act of 1991, converting the ruling of disparate impact in the original case into clearly written law.
Applications to Marine Corps Headquarters
The Marine Corps Headquarters as with all public sector agencies have clearly written policies and a "zero tolerance" on discrimination. The organization cites the applicable laws and explains, through examples, how the laws can be misconstrued and/or broken. The organization is very open as to the percentages of male and female in each job category as well as its inclusion of protected class employees into all areas of business. The Marine Corps Headquarters as all public sector agencies have diverse populations in every job category. While some positions are still held by their "gender expected" employees, public sector organizations and/or agencies work hard to stay neutral by hiring and promoting based on qualifications and not gender, race, etc.
Conclusion
Disparate Impact can be a difficult infraction for employers to notice, as a policy can be lawful in thought but still negatively impact a protected class. The above analyzed case of Griggs v. Duke Power Co. (401 U.S. 424, 1971) has been referenced numerous times to defend, and break, other cases throughout the past 35 years. A request of the case file from Westlaw's website, for example, will include over 400 pages of cases using the Griggs case as a reference (McIver, 2005). With such a complicated, subtle and controversial discrimination practice, Congress's move to put it into law with the Civil Rights Act of 1991 has aided employers to understand the true impact of seemingly innocuous rules and regulations. Now, employers have the clear information needed to assure fair hiring and promotions within their organizations.


References
On-the-job Discrimination: Gender Discrimination 2004. (2004). Retrieved June 5, 2006,
from http://www.tennesseeemploymentlawcenter.com/gender_discrimination.html
Player, M. A., Shoben, E. W. & Lieberwitz, R. L. (1995). Employment Discrimination
Law: Cases and Materials. (2nd ed.).St. Paul, MN: West Publishing Co.
McIver, M. Attorney at Law (2006). Personal conversation June 8, 2006.
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