Disparate Impact and the Civil Rights Act of 1991

This paper will first discuss the disparate impact theory and the respective burdens of the plaintiff and defendant under this theory as it was articulated up until Wards Cove v. Antonio. It will then discuss the impact of the Civil Rights Act of 1991 upon future disparate impact cases and public policy.

The disparate impact theory was first articulated by the Supreme Court in 1971 in Griggs v. Duke Power Co. In this case job applicants were required to take a general intelligence test and produce a high school diploma, the effect being to disadvantage black applicants. The Court said that Title VII of the 1964 Civil Rights Act prohibited practices which are neutral in form but discriminatory in operation unless they are manifestly related to job capability. Employment selection procedures which, therefore, create an imbalance in the makeup of the defendant's workforce violate Title VII even though there may have been absolutely no intent to discriminate in adopting the procedures. In Griggs the court established the basic test for disparate impact which was used until Ward's Cove. The plaintiffs must first establish a prima facie case by showing that the defendant employer's hiring or promotion practices have discriminated against minorities protected by Title VII, resulting in the underrepresentation of such minorities in the job categories at issue. The defendant employer may then rebut this prima facie case by proving tha

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ar only the burden of production and not the burden of persuasion. Appellate Courts, however, have ignored this dicta, usually emphasizing the application of heightened scrutiny with such language as "...the business purpose must be sufficiently compelling to override any racial impact...." and "[n]ecessity connotes an irresistible demand....[A practice] must not only directly foster safety and efficiency of a plant, but also be essential to those goals." One exception to this standard is where special considerations of health and safety are involved; in such cases, the defendant employer may be held to a lower standard of scrutiny. The 10th Circuit, in a case involving college degree requirements for airline pilots, stated that "when the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job-related...." Initially applied only in cases involving pilots and long-haul truck drivers; this rule was later expanded to include police officers since their jobs combine professionalism, public risk, and responsibility with skills which are hard to define, test for, or
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Approximate Word count = 2052
Approximate Pages = 8 (250 words per page)

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