The Disparity between Disparate Treatment and Disparate Impact: An Analysis of the Ricci Case

By Winrow, Brian P.; Schieber, Christen | Journal of Legal, Ethical and Regulatory Issues, July 1, 2010 | Go to article overview

The Disparity between Disparate Treatment and Disparate Impact: An Analysis of the Ricci Case


Winrow, Brian P., Schieber, Christen, Journal of Legal, Ethical and Regulatory Issues


ABSTRACT

Purpose

The purpose of the article is to provide practitioners and scholars a working knowledge of the US. Supreme Courts recent holding in Ricci v. DeStefano, addressing whether an employer can engage in disparate treatment of one class of employees/applicants in order to remedy the disparate impact of another class.

Design

This article examines reported cases pertaining to Tile VII of the Civil Rights Act. The focus was on cases and literature pertaining to the inherent conflict between disparate treatment and disparate impact legislation. Published cases underwent a comprehensive case review using the Westlaw research system. Relevant cases were shepardized.

Results

The 2009 U.S. Supreme Court holding in Ricci prohibits employers from taking adverse action against employees/candidates that successfully complete the employers criteria, in order to address a claim of disparate impact, unless the employer can establish that there is a strong basis in evidence to warrant the discrimination.

Originality/Value

The article incorporates recent court cases in what has become the most litigated facet of law for employers.

KEY WORDS:: Title VII, Civil Rights Act, Disparate treatment, Disparate impact

CLASSIFICATION: General review

INTRODUCTION

The legal environment is a complicated and expensive component that all business should closely monitor, as changes can change the competitive landscape. In order to sustain a competitive advantage, employers must stay abreast of the numerous changes within the law that has the potential to affect their business. The need to monitor changes within the law is heightened when the business hires employees, as employment law issues have become the most litigated facet of law for small business owners. While the employee at- will doctrine still governs most employees, courts and legislatures have carved out numerous exceptions in order to afford additional safeguards to employees that they otherwise would not enjoy (Galberry, 2000). One of the more publicized examples involves employees seeking protections bestowed upon them through their employee handbook (Galberry, 2000). Courts consistently recognize that employee handbooks can create a reasonable expectation of rights as provided for within the handbook (Galberry, 2000). As a result, many attorneys are now advising their business clientele to adopt "employee instruction manuals" as opposed to employee handbooks in order to circumvent the negative precedence associated with the employee handbook.

A second, and more prevalent, exception to the employee at-will doctrine, and the focus of this article, is Title VII of the Civil Rights Act. The legislative intent associated with Title VII was to prevent discrimination based upon race, gender, religion, or national origin. The purview of Title VII prohibits employers from taking adverse actions against an employee within the employment realm, which includes the hiring, promoting, and termination function. While Title VII is the most comprehensive employee antidiscrimination protection, it has undergone a series of legislative and judicial revisions, expanding the scope of Title VII. One such revision, and the focus of this article, is legislative action prohibiting not only intentional discrimination, but also unintentional practices resulting in a disparate impact, for actions that resulted in discriminatory conduct (Griggs v. Duke Power Company, 1971).

Under the revision, employers must not only ensure their employment activities are facially neutral, but they must also be proactive in preventing and remedying any disparate treatment from facially neutral exams (Civil Rights Act, 1991)). Based upon the Act, employers are confronted with conflicting laws. First, they may not intentionally discriminate based upon race, gender, religion, or national origin (Civil Rights Act, 1961). Secondly, if they discover that their employment criteria results in a disparate impact on one class, the employer needs to remedy the discriminatory practice (Ricci, 2009). …

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