Federal antidiscrimination laws prohibit a wide range of acts by employers and others that have adverse effects on members of protected groups. This protection is not limited to overtly discriminatory behavior. The Civil Rights Act of 1964 also prohibits practices that have a disparate impact on protected groups, even when those practices appear neutral on their face or do not appear to have discriminatory intent. This applies to employment, housing, and other areas. An employer’s intent is not the most important factor when assessing whether an action, policy, or practice is discriminatory. A recent report on an internal memorandum at the U.S. Department of Justice (DOJ) suggests that the current administration is considering rolling back regulatory prohibitions on disparate impact discrimination. While the memorandum reportedly refers to Title VI cases, not Title VII, any rollbacks in other areas of antidiscrimination regulations are likely to have an effect on New Jersey employment discrimination claims, as well as nationwide.
The most important U.S. Supreme Court decision on disparate impact discrimination in employment is Griggs v. Duke Power Co., 401 U.S. 424 (1971). A group of African-American employees alleged that the defendant violated Title VII by requiring candidates for transfer or promotion within the company to have a high school diploma or pass “a standardized general intelligence test.” Id. at 426. The Supreme Court agreed with the plaintiffs. It found that, while the defendant’s policy appeared neutral with regard to race, it was not “significantly related to successful job performance” and had the effect of discriminating against African-American employees. Id. The Supreme Court has also rejected a “bottom line” defense, in which an employer argued that they should not be held liable if a discriminatory practice happens not to have an overall adverse impact in the balance of employees. Connecticut v. Teal, 457 U.S. 440 (1982).
Several federal agencies have adopted a set of standards known as the Uniform Guidelines for Employee Selection Procedures in their regulations. This includes the DOJ and the Equal Employment Opportunity Commission (EEOC). See 28 C.F.R. § 50.14, 29 C.F.R. pt. 1607. Under these guidelines, a selection rate in hiring or promotion for a protected category like race or sex that “is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate” is considered evidence of disparate impact discrimination. 28 C.F.R. 50.14(4)(D), 29 C.F.R. § 1607.4(D). Both the DOJ and the EEOC raise claims of disparate impact in civil enforcement actions.
Disparate impact discrimination may also be actionable in other areas. The Supreme Court affirmed the right of private causes of action for disparate impact under the Fair Housing Act in Tex. Dept. of Housing and Comm. Affairs v. Inclusive Communities Project, Inc., 576 U.S. ___ (2015). A joint memorandum issued by the DOJ and the Department of Education in January 2014, and later rescinded, addressed school disciplinary policies and practices that disparately impact students of different races. Title IV of the Civil Rights Act of 1964 addresses discrimination in schools. The recent DOJ memo addresses the agency’s approach to disparate impact under Title VI, which deals with discrimination in private programs that receive federal funding.
The employment lawyers at the Resnick Law Group advocate for the rights of employees, former employees, and job seekers in New Jersey and New York, representing them in both state and federal matters. Please contact us at 973-781-1204, at 646-867-7997, or online today to schedule a confidential consultation with a member of our team.
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Supreme Court Sides with Job Applicant in Religious Discrimination Claim, The New Jersey Employment Law Firm Blog, July 31, 2015