Diversity, disparate impact, and discrimination pursuant to Title VII of US civil rights laws. A primer for management

• Pages: 670-691
• Date: 18 September 2017
• DOI: https://doi.org/10.1108/EDI-04-2017-0091
• Published date: 18 September 2017
• Author: Frank J. Cavico,Bahaudin Mujtaba
• Subject Matter: HR & organizational behaviour,Employment law,Diversity, equality, inclusion

Diversity, disparate impact, and

discrimination pursuant to Title

VII of US civil rights laws

A primer for management

Frank J. Cavico and Bahaudin Mujtaba

Department of Management, Nova Southeastern University,

Fort Lauderdale, Florida, USA

Abstract

Purpose –While the words diversity, disparate impact, and discrimination are commonly read and heard by

working adults and professionals, they can at times be confusing and fearful to some managers. The purpose

of this paper is to provide an overview of a specific aspect of US civil rights laws –the disparate impact

theory. The authors provide an analysis based on the statute, case law interpreting, and applying the statute,

administrative guidelines from the Equal Employment Opportunity Commission, as well as legal and

management commentary. The paper illustrates the requirements of a plaintiff employee’s initial case

based on the disparate impact theory. The challenging causation component which requires some degree of

statistical evidence is given particular attention. Limitations to the paper are stated at the beginning; and

recommendations to managers are explored and provided toward the end of the paper.

Design/methodology/approach –It is a legal paper which covers all the laws related to discrimination

based on disparate impact and disparate treatment theories. Actual court cases up until this month and

Americans laws related to this concept are reviewed and critically discussed.

Findings –The salient feature of disparate impact is that this legal theory allows a plaintiff job applicant or

employee to sustain a case of illegal discrimination without providing any evidence of a discriminatory

motive. As opposed to the disparate treatment liability is imposed based on disproportionate adverse results

and not discriminatory intent.

Research limitations/implications –This paper deals with the disparate impact theory pursuant to

Title VII of the Civil Rights Act. However, it must be pointed out that the disparate impact theory is also

applicable to claims arising under the Americans with Disabilities Act and the Age Discrimination in

Employment Act. Since the focus of this paper is Title VII federal and state constitutional issues, such as the

applicability of the 14th Amendment’s Equal Protection clause that may arise in disparate impact cases

involving government entities will not be addressed.

Practical implications –Managers and employees can protect themselves in the workplace from illegal

discriminatory practices. Initially, employers and managers must be aware of the distinction between

a disparate impact case and a disparate treatment case with the latter requiring evidence of intentional

discrimination. Evidence, of course, can be direct or circumstantial or inferential. Whereas in a disparate

impact case there is no intentional discrimination; and as such proof of discriminatory intent is not required.

Rather, the employee has to present evidence that the employer’s neutral on-its-face employment policy or

practice caused an adverse disproportionate impact on the employee as a member of a protected class.

Social implications –Human resources professionals and managers must become educated in diversity laws in

order to provide an inclusive workplace for all employees and candidates. Employers have legitimate areas of

concern in hiring and promoting employees; and the courts are cognizant of employer responsibilities; and thus the

employers must be able to show how specific knowledge, skills, education, training, backgrounds, as well as height,

weight, strength, and dexterity are legitimate qualifications that directly relate to successful job performance.

Originality/value –This is an original paper by the authors.

Keywords Diversity training, Credit checks, Criminal background checks, Disparate impact,

Disparate treatment, US civil rights laws

Paper type Research paper

1. Introduction

This paper is an examination of a specific aspect of US civil rights laws –the disparate

impact theory of liability pursuant to Title VII of the US Civil Rights Act. The authors

provide an analysis based on the statute, case law interpreting and applying the statute,

Equality, Diversity and Inclusion:

An International Journal

Vol. 36 No. 7, 2017

pp. 670-691

© Emerald PublishingLimited

2040-7149

DOI 10.1108/EDI-04-2017-0091

Received 27 April 2017

Revised 28 June 2017

Accepted 8 September 2017

The current issue and full text archive of this journal is available on Emerald Insight at:

www.emeraldinsight.com/2040-7149.htm

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EDI

36,7

administrative guidelines from the Equal Employment Opportunity Commission, as well as

legal and management commentary. Title VII prohibits discrimination in employment based

on race, color, national origin, religion, and sex. The paper provides a succinct overview of

the seminal civil rights statute –Title VII as we differentiate the two major theories of

liability–disparate treatment vs disparate impact. Once the plaintiff employee makes out an

initial case of disparate or disproportionate impact, the burden of proof and persuasion

shifts to the employer to come up with a job-related and business necessity justification for

the policy or practice in question. As such, this critical employer defense will be explicated

and illustrated. Next, the burden shifts back to the plaintiff employee to show that there

exists another alternative which woul d cause less of a disproportionate impact.

This “alternative”aspect of the law will also be covered.

The paper examines disparate impact topic such as the employer’s use of criminal

background checks in hiring, credit checks, and other methods of testing and selection

procedures. Next, we discuss the practical implications of the disparate impact theory for

employers and managers; and then we supply pertinent recommendations to employers and

managers. The recommendations will underscore the need to establish an appropriate

corporate culture, including diversity education and training. The objectives are to avoid

civil rights liability and to create a fair and just workplace.

Overall, this paper deals with the disparate impact theory pursuant to Title VII of the

Civil Rights Act. However, it must be pointed out that the disparate impact theory is also

applicable to claims arising under the Americans with Disabilities Act (Raytheon Co.

v. Hernandez, 2003; Harper, 2016; Travis, 2012), the Age Discrimination in Employment Act

(Rudolph A. Karlo v. Pittsburg Glass Works, LLC, 2017; Meacham v. Knolls Atomic Power

Laboratory, 2008; Smith v. City of Jackson, 2005; Harper, 2016), and the Fair Housing Act

(Ko, 2016; Sacherm Lindsey, 2010). Also, since the focus of this paper is on Title VII, federal

and state constitutional issues, such as the applicability of the 14th Amendment’s Equal

Protection clause that may arise in disparate impact cases involving government entities

will not be addressed.

2. Overview of Title VII

Title VII of the Civil Rights Act protects certain groups of employees from illegal

discrimination regarding all the “terms and conditions”of employment based on the

protected categories or characteristics of race, color, religion, national origin, and sex.

Title VII, moreover, recognizes two types of legal actions by aggrieved employees against

their employers:disparate treatment and disparateimpact. Disparate treatment is intentional

discrimination based on the protected categories of the statute (Equal Employment

OpportunityCommission, 2010a; Cavicoand Mujtaba, 2014). In a disparate treatmentcase, the

employee is purposefully being treateddifferently to his or her detriment becauseof his or her

race, etc. Consequently, evidenceof a discriminatory motive against the employeeis required.

The employer can defenda disparate treatment case by showing thatit had a legitimate, non-

discriminatory reason for the job-action, for example, not hiring an applicant or discharging

an employee. However, the employeecan then show that the employer’s reason was fake or a

pretext to mask a discriminatory motive (Cavico and Mujtaba, 2014).

In a disparate impact case, at times called “adverse impact,”evidence of purposeful intent

to discriminate is not required. As succinctly stated by the US Supreme Court:

“In evaluating a disparate-impact claim, courts focus on the effects of an employment

practice, determining whether they are unlawful irrespective of motivation or intent”(Peggy

Young v. United Parcel Service, Inc., 2015, p. 289). Several rationales can be given to support

the disparate impact theory, for example, to avoid the “easy evasion”of Title VII by means

of neutral but exclusionary employment practices (Olatunde, 2014, p. 140); to disclose

and to redress “hidden discrimination”( Johnson, 2013, pp. 437-438); to eliminate

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rights laws