Final Outline

Page 1 of 85 12/4/06 1:18 PM

Can neutral policies be discriminatory

o Yes, in some instances. Some neutral employment policies or practices may exclude certain racial

groups in significantly greater percentages than other racial groups. If there is a business necessity for

the practice and there is no equally effective alternative, the practice will be lawful despite its impact.

o However, if there is not a business necessity for the practice or the business need could readily be met in

a way that has less impact, the practice will be unlawful.

o Example: An employer has a "no-beard" rule, which disproportionately excludes African American men

because they have a higher incidence of pseudofolliculitis barbae, an inflammatory skin condition

caused by shaving. The employer must be able to demonstrate that beards affect job performance or

safety. Also, there must be no alternatives to a strict "no-beard" rule that would meet the employer's

business or safety needs.

Additional examples of neutral employment policies that may be discriminatory are included in the

following sections.

Law Review Articles

o Business Necessity under Title VII of the Civil Rights Act of 1964: A No-Alternative Approach

Yale Law Journal, Vol. 84, No. 1 (Nov., 1974), pp. 98-119

doi:10.2307/795509

o The Civil Rights Act of 1991: The Business Necessity Standard

Harvard Law Review, Vol. 106, No. 4 (Feb., 1993), pp. 896-913

BUSINESS NECESSITY Page 2 of 85

ß 13. Business necessity "Business necessity" is the only known defense to a showing on the part of the plaintiff that a personnel practice has the impact of denying protected classes equal opportunity for hire, promotion, training, earnings and any other term or condition of employment. This defense can be utilized only in cases where the criterion under attack is neutral on its face and uniformly applied. It is never a defense to an explicit refusal to provide equal employment opportunity because of race, sex, religion or national origin. Accordingly, three conditions must exist before an issue as to business necessity can arise: (1) The criterion used as the basis for the employment practice must be apparently neutral; (2) the criterion must be uniformly applied by the employer; and (3) the criterion must, nevertheless, have a disparate impact on a protected class. The term "business necessity" is a term of art; it is a fluid concept rather than one that embodies a sharply defined rule of law. In some cases the courts have held that an employment practice having a discriminatory impact can be justified on business necessity grounds only if it is "essential," and not merely reasonably appropriate, to the safety and efficiency of the employer's operations.[FN92] These courts hold that the mere fact that the employment practice serves legitimate management functions will not suffice to justify discrimination.[FN93] Other courts argue that business necessity is established simply by showing reasonable relationship of the practice to the employer's business needs. However, the majority of courts are veering toward essentiality in efficiency and safety as the standard which the employer must meet to justify discrimination.[FN94]

The decision of the Supreme Court in Griggs v. Duke Power Co., [FN95] although not couched in terms of the "business necessity" defense, bears upon the question. In holding that Title VII prohibited an employer from requiring a high school education or passing of a standardized general intelligence test as a condition of employment or promotion, when (a) neither standard was shown to be significantly related to successful job performance, (b) both requirements operated to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees in accordance with a longstanding practice of preferring whites, the Supreme Court stated:

Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.[FN96]

The important thing to note about the business necessity concept is that it is variable and is applied more or less ad hoc in each instance. This lack of a precise definition creates problems for both the plaintiff and the defendant. The plaintiff can never be certain to what extent a response must be made to an attempt on the defendant's part to show business necessity, while the defendant can never be certain what proofs are adequate to make out a case of business necessity.

The best way to deal with the concept of business necessity is to see it as a relationship between two functions. The first function is the degree of disparate impact generated by the practice subject to challenge. For example, if an employer administers a paper-and-pencil examination that is only moderately predictive of job performance,[FN97] but has a disparate impact which is negligible, say one or two percent, and, if the employer can show that the use of the test results in a substantial financial benefit, it is unlikely that the court would hold the practice to be discriminatory. This would be true even though there is some degree of inequality resulting from the use of the test. On the other hand, if a test or other selection device resulted in a virtual exclusion of a protected class, it is quite possible that the test would be held unlawful, even if it were shown to be highly predictive and resulted in a significant financial benefit to the employer.[FN98]

Somewhere between the two extremes of slight and great disparate impact and slight and great value to the employer is a point at which the court will conclude that the practice is or is not justified by business necessity. The locus of that point in any given case will probably be established by the skill of the practitioner and the prejudices of the court. Where the question is close, it would seem good practice for the plaintiff to show, if possible, evidence of discriminatory practices other than the employer's testing procedures which will tend to color the question favorably from plaintiff's point of view, while on the defendant's part, a showing of affirmative action to prevent or eliminate discrimination generally should be beneficial.[FN99]

B. Meeting the Employer's Defense of "Business Necessity" ß 116. Employer's burden of proof[Cumulative Supplement]

Once the practice which causes the disparate distribution is established, the burden falls squarely on the defendant to show that the utilization of the selection criteria is justified by "business necessity," [FN84] because the statistical imbalance itself makes out a prima facie case.[FN85] Where the defendant fails to make such a showing, or otherwise adequately explain the disproportionate distribution in his work force, a finding of discrimination follows. Virtually, all Title VII class actions follow this pattern of proof.

In some cases, the employer may simply refuse to employ women or minorities in certain job categories and will be unable, or will make no effort, in the civil action to furnish any plausible excuse for this discrimination.[FN86] In most cases, however, the employer will seek to explain the absence of a proportionate number of the protected class from the job category on a variety of grounds, usually that the affected class is not qualified to perform the work in the job categories in which they are underrepresented.

Cases:False explanation for employment action: It is permissible for trier of fact in employment discrimination case to infer the ultimate fact of discrimination from the falsity of the employer's explanation; proof that defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. Age Discrimination in Employment Act of 1967, ß 4(a)(1), 29 U.S.C.A. ß 623(a)(1); Civil Rights Act of 1964, ß 703(a)(1), 42 U.S.C.A. ß 2000e-2(a)(1). Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 147

L. Ed. 2d 105 (U.S. 2000); West's Key Number Digest, Civil Rights 377.1.

[END OF SUPPLEMENT]

ß 21.5. Disparate impactCases:Under "disparate-impact" theory of disability discrimination, facially neutral employment practice may be deemed illegally discriminatory without evidence of employer's subjective intent to discriminate that is required in disparate-treatment case. Americans with Disabilities Act of 1990, ß ß 2 et seq., 42 U.S.C.A. ß ß 12101 et seq. Raytheon Co. v. Hernandez, 540 U.S. 44, 124 S. Ct. 513, 157 L. Ed. 2d 357, 14 A.D. Cas.

(BNA) 1825, 62 Fed. R. Evid. Serv. 1462 (2003); West's Key Number Digest, Civil Rights 1223.

Establishing disparate impact vs. establishing causation: Statistical data may be admitted to show a disparity in outcome between groups, in a disparate impact case under the ADEA or Title VII, but to make out a prima facie case, the statistical disparity must be sufficiently substantial to raise an inference of causation. Age Discrimination in Employment Act of 1967, ß ß 2 et seq., 29 U.S.C.A. ß ß 621 et seq.; Civil Rights Act of 1964, ß ß 701 et seq., 42 U.S.C.A. ß ß 2000e et seq. Smith v. Xerox Corp., 196 F.3d 358 (2d

Cir. 1999); West's Key Number Digest, Civil Rights 381

[Top of section]

[END OF SUPPLEMENT]

Where a physical fitness standard has a disparate impact on women the concern of the law enforcement

administrator then becomes how to successfully justify the physical fitness standard under the statutory

requirement. Unfortunately the Supreme Court has never ruled what "job related for the position in question

and consistent with business necessity" means. As discussed above, the Third Circuit ruled in the Lanning case

that this provision requires that an employer must show that the standard is a "minimum qualification necessary

for the successful performance of the job in question." Other circuits have not been so restrictive. For example

the Eleventh Circuit has ruled that an employer meets the statutory standard of business necessity by showing,

". . .that the practice or action is necessary to meeting a goal that, as a matter of law, qualifies as an important

business goal."24 The EEOC has stated that a selection policy which has a discriminatory impact on members

of a Title VII protected classification is inconsistent with EEOC guidelines unless the policy has been validated

pursuant to the guidelines.25 The guidelines then lists three means to validate such a policy: criterion related

validity, content validity, and construct validity.26 Each of these means of validation are defined in the

guidelines.27 All of these means of validation appear less restrictive than the Third Circuit standard expressed

in Lanning.

FITZPATRICK

Key: Any case involving the heath and safety of people gets a privilege –

meaning the court doesn’t put as big a burden on the employer,

Defendant, to show statistically that it is “essential to the job.” 

Q: What is really going on here? In a normal case like this, the employee would have to establish a prima facie

case of disparate impact, then the burden shifts to the employer to show that this

is job related.  To show this, the employer would have to show a whole bunch of

employees with beards that presented a safety hazard while on the job, whereas

those without beards, statistically, were okay.  

This case is more like a BFOQ case involving safety.  Safety, as evidenced in

other cases, gets an advantage from the courts.

Sec 7 Page 7 of 85 12/4/06 1:18 PM

I. explained and resolved. n15

II. The first theory, implicitly espoused in Wards Cove and other recent

Supreme Court decisions, n16 would prohibit only discrimination based on

explicit or pretextual use of an individual's race, color, religion, sex or national

origin. This theory would permit an employer to make distinctions based on any

facially neutral criteria, including those resulting in disparate impact on protected

groups, unless the employer used those criteria as a pretext for discrimination

based on a prohibited factor. The theory finds pretextual discrimination only

when the employer uses disparately impacting criteria unreasonably. This fault-

constrained theory will be referred to as the "Fault Theory."

The second theory, implicitly espoused in Griggs, other previous Supreme Court

decisions n17 and the Civil Rights Act of 1991, n18 would prohibit not only

discrimination based on explicit or pretextual use of one of the prohibited factors, but

also discrimination based on any biased or non-neutral criteria that an employer uses

without business justification. Distinctions based on facially neutral criteria that result in

disparate impact on protected groups would be deemed non-neutral. An employer would

not be permitted to use such a suspect criterion unless its use was justified by the needs

of the business. This effects-focused theory will be referred to as the "Effects Theory."

Page 8 of 85 12/4/06 1:18 PM

DISPARATE IMPACT THEORY

Disparate Impact Title VII extended to facially neutral employment practices w/ an adverse impact on

persons of a particular race, national origin, sex, or religion [Griggs]

o Burden:

has Lighter burden than disparate treatment (intentional discrim.) theory prove adverse effects

instead of discriminatory intent

Puts some burden on justify practices w/ adverse effects

Taken together, the ’s evidence of adverse impact & ’s evidence of business justification must

reveal a significant risk that the disputed employment practice could be used as a pretext for

discrimination

Theory of Disparate Impact only addresses the difficulty of proving pretexual discrim.

& of using objective evidence more clearly & systematically (PAGE 7, 30 GA L. REV.)

2 Goals Preventing pretexual discrim. or discouraging employment practices w/ adverse impact

o Adverse impact can be further reduced only through preferences that require employment decisions to

be made explicitly on a prohibited bais

The the adverse impact, the business justification that must be proved by the

Griggs didn’t foresees that these 2 goals would come into conflict if employment practices were

difficult to justify & if the ’s burden of justification was correspondingly difficult to carry

A duty to make reasonable efforts is also compativle w/ the oriinal formulation iof disparte impact doctrine in

griggs, whisch was to remove barriers to employment that are the result of past di scrimination ( not barriers to

employment that s have created themselves (page 2727,Fordham )n

Original formulation of disparate impact ladi out in griggs narrowly as creating a theory of disparate impact as a

temporary mearurs to be used only where there had been a showing of “purposeful discrimnationi n the past.The

Types of Disparate Impact

o Intent Theory evidence of adverse impact is evidence of discriminatory intent – yet DI theory is not an

intent based standard.

o Past Discrimination Theory employment criterion with DI on black persons is unlawful if the DI

results from past race-based decision making – yet DI doesn’t require showing of past discrimination.

o Functional Equivalent Theory neutral criteria that have adverse impact on blacks and can’t be justified

by any business necessity are the functional equivalents of race and should be treated like race – several

of the justices subscribe to this theory – See O’Connor’s plurality opinion in Watson.

o Statistical Discrimination Theory views the DI model as a mechanism to prohibit discrimination as

defined byÇ theory – grounded in an economic analysis of labor markets and proceeds on the view that

DI is designed to prohibit economic discrimination.

o 1991 changed this and now an employer must affirmatively show that the criteria imposed as a

prerequisite to employment was a business necessity.

HISTORY

Griggs established Disparate Impact

o A focus on Effect, not Inent

o Case of obvious pretextual discrimination (could have been subject of a claim of disparate treatment)

o only needs to prove adverse impact

o If proves burden needs to prove job relationship or business necessity

o Given practice must have manifest relationship to the employment in question

o Burden of production and persuasion shifts to employer after prima facie case is established by to

show that practice in question was business necessity (Albemarle Paper, Dothard)

Albemarle Paper Co

o If employer does not adopt less discrim. alternative, may be accused of pretext for discrim. Albemarle

Paper

o Albemarle: make the person whole, put the person in the position in the same place that the would have

been minus the systemic discrimination, would have been hired but/for

o (282)-equitable relief is available if you prove discrimination

o “We are entitled to retroactive seniority”-so that they would be made whole

o Freedom now approach Albemarle Paper Co v. Moody (1975) was an early DI case that described the

litigation structure of the DI case as including a P’s surrebuttal, even if the employer proves the

challenged practice is justified as job-related and consistent with business necessity or, arguably, that it

is sheltered by §703(h).

o §703(h) is the provision about an alternative means; and if the P finds one then the tests will be evidence

of “pretext” for discrimination. “Pretext” here may refer to a “less restrictive alternative analysis.” This

was clarified in 1991, ultimately “pretext” is not a formalized part of the DI analysis.

Dothard

Washington v. Davis

Wards Cove majority adopted the “relevant labor market” concept

o Remodeled disparate impact favors employers

o Redefined rebuttal state only burden of production shifts to employer

Reduces employer’s rebuttal obligations from a showing of job-relatedness & business necessity to a

“reasoned review of the employer’s justification”

o Required highly focused showing that particular employment practices cased Disparate Impact

o Wards Cove – majority adopts the ‘relevant labor market’ concept of Hazelwood (a systemic disparate

treatment case) – says stats should compare the racial composition of the at-issue jobs & the racial

composition of the qualified population in the relevant labor market. Yet in systemic DT cases, issue is

whether stats support inference of discriminatory intent – in DI cases, it’s whether ’s neutral

employment practice has DI on statutorily protected group – is the relevant group the same for both

cases?????

1991 CRA Act generally interpreted as intended to return DI doctrine to pre-Wards Cove status.

Lanning Crt’s interpretation of business necessity standard in Wards Cove doesn’t survive Act

Conneticut v. Teal permits an attack on any practice with an identifiable impact, and renders a

nondiscriminatory bottom line no defense to an impact on a particular practice

Bradley v. Pizzaco: Bradley sued Domino's Pizza claiming his discharge (for failure to comply with

Domino's no-beard policy) discriminates against black males. PFB almost exclusively affects black males

and white males rarely suffer from skin disorders that may prevent a man from appearing clean-shaven

Zamlen holding that firefighter qualifying exam did not discriminate against female applicants because certain

physical abilities are needed to ensure public safety

TYPES OF EMPLOYMENT PRACTICES

Objectivewritten or physical tests:

o Could be test itself

o Could be how test is scored or how scores are ranked (Zamlen)

o “Noming” i.e. allowing different groups to have different pass cutoffs, is outlawed by 1991 CRA.

o Race / Sex “Norming” of Test Scores: adjusting scores or using different cutoff points for different

races or sexes is explicitly prohibited by §703(I).

Eliminating biased questions from test is allowed.

“Banding” of Scores: (generally allowed) all applicants within a statistically equivalent range are

treated same.

Reflects the fact that strict rank-ordering will not necessarily reflect the correct comparative

abilities of each candidate or relate to job performance.

o height/weight requirements [Dothard]

Subjective [Watson] hiring criteria

o Interviews

o performance evaluations

Combination of objective & subjective

Multiple elements of an employment practices [704(k)(1)(B)] P must prove that each particular

employment practice has a disparate impact.

o Except if P can prove that the decision-making process is not capable of separation for analysis, P ,can

analyze the decision-making process as one employment practice.

ADVERSE EMPLOYMENT ACTION:

Three Interpretations:

o Expansive View: any action that is reasonably likely to deter the alleged victim or others from engaging

in future protected activity

o Intermediate View: any decision that materially affects the terms & conditions of employment

o Restrictive View: ultimate employment actions (hiring, termination, promotion, & demotion)

Generally ostracism by co-workers without instigation by employer ≠ adverse employment action

Retaliatory harassment by supervisors is generally evaluated under sexual harassment rules

Causal Link between the Adverse Action & the Protected Expression:

Inference can be drawn based on:

o ’s knowledge of ’s conduct

o Time between the conduct & the adverse employment action

Elements of DI Case

o 1st (Initial) Stage’a establishment of a statistical prima facie case

o 2nd Stage Once establishes prima facie case, the Employer may:

Disprove the existence of the alleged DI by challenging the verity or significance of ’s statistics or

Affirmatively prove that, despite the DI, the practice is justified bc it is “job related for the position

in question & consistent w/ business necessity

o 3rd Stage If proves 2nd stage, may nevertheless prevail by introducing evidence that there is a less

discriminatory alternative which the cannot successfully rebut but reuses to adopt

FRAMEWORK SHOWING DISPARATE IMPACT (unlike McDonnel Douglas: true burden

shifting burden of persuasion shifts but not the burden of production)

Burden Shifting

o Prima Facie Case

o Business Judgment Employer has burden of production & ….regar

o Alternative Selective Procedure

Prima Facie Case have burden of production & persuasion:

o causal connection

o statistical evidence Show significant difference

o show that the particular practice causes a statistical disparity

4/5 Rule [federal agencies’ Uniform Guidelines]

Bottom Line Analysis (bottom line statistics) [Teal]

o What Population?

Applicant pool or

Pool of qualified persons in the labor market (if applicant pool is artificially skewed)

o Isolate which particular business practice is causing observed statistical disparity (Wards Cove)

o 1991 CRA If complaining party can demonstrate that the elements of an employer's decision making

process are not capable of separation for analysis, decision making process may be analyzed as one

employment practice.

Business Judgement/Necessity standards and criteria for evaluating business necessity

Important Business Goal Fitzpartick v. City of Atlanta

2 part test: crt must determine as matter of law, whether the employer has identified ian important business

goal.

Crt must decide if the challenged practice is demonstrably necessary to meeting that goal.

Reasonably necessary to achieve an important business objective Donnely v. Road Island Bd. Of Governors

for Higher Education

o APPLICATION

Proof of Adverse Impact

Proof of adverse impact: Any statistics that tended to show disproportionate exclusion of a

group by the employment practice in dispute

How do we define the Labor Market?

Statistical Evidence must be harnessed to the fundamental purpose of the theory of

disparate impact

Test for statistical significance

Thresholds: differs from statistical significance bc it doesn’t concern the question of whether an

apparent numerical difference really resulted only from chance

Statistical significance

Practical significance Concerns the of whether a genuine numerical difference is large

enough to make a practical difference in employment decisions

It cannot be analyzed in the abstract, as a matter of simple numerical differences. Instead

it must be reference to the risk of pretextual discrimination, so that a large disparity w/ a

strong justification doesn’t constitute a violation of Title VII, whereas a moderate

disparity w/ no justification at all does

Bottom Line Rule

Scope Of The Theory Of Disparate Impact

offers evidence to demonstrate inaccuracy or irrelevancy of ’s statistics

Business Necessity Defense Evaluating Employment Tests Under DI (1991 CRA)

Uphold test only when the employer produces evidence that its test closely approximates &

effectively measures (“job related”) a skill that is important to successful job performance

(“consistent w/ business necessity)

‘consistent w/ business necessity” by measuring a sill necessary for job performance (First

Prong)

Two Prong Test

1st Prong The skill sought to be measured by the employment test is consistent w/

business necessity (manafest relationship standard), [6 U. Chi L. Rev. 777, pg. 8]

The test itself is cearly job related by closely approximating an on-the-job task (content

validation) (closely approximatesa job tax

Safety Test does grant some deference to employers in seeking to justify their employment

practices if they are testing skills that will create the safest and most efficient police/fie

department

Crts should be more linient when evaluating employer disparate impact defenses in jobs

affecting public safety

o ’s Defenses:

Defenses (Affirmative Defense) prove defense through validity tests degree to which statutory

authority ca be claimed for the theory of DI depends upon magnitude of the burden that the defense

imposes on the , or more accurately, upon the strength of the justification needed for an

employment practice w/ adverse impact.

No good faith defense good faith in using the disputed employment practice, since the very

purpose of the theory is to avoid he need for evaluating evidence on this issue.

Intentional discrimination evidence of intentional discrimination figured prominently in many

of he major decisions under the theory of DI bc the substituted neutral tests for explicitly

discriminatory practices.

o Business Justification Business Necessity + Job Relatedness

Difference bw business necessity and job relatedness

Consistent w/ Business Necessity

Particular practice prove w/ expert witness

Safety (necessary on the job skill?)

Customer preference

Job Relatedness

Almost all cases aagree that the bears the burden of persuasion on the issue of business

justification std. burden of proof by a preponderance of the evidence

Business justification concerns the objective reasons that employers in general can reasonably

have for using the disputed employment practice not the subjective reason peculiar to the

Validation and sliding scale

Construct validation

Construct validation

o Bona Fide Seniority System 703(h) (Teamster)

Whether it operates to discourage all employees equally from transferring bw seniority units

Whether the seniority units are in the same or separate bargaining units (if the latter, whether that

structure is rational and in conformance with industry practice)

Whether the system had its genesis in racial discrimination

Whether the system was negotiated and has been maintained free from any illegal purpose.

o Bona Fide Seniority System 703(h) (Teamster)

Whether it operates to discourage all employees equally from transferring bw seniority units

Whether the seniority units are in the same or separate bargaining units (if the latter, whether that

structure is rational and in conformance with industry practice)

Whether the system had its genesis in racial discrimination

Whether the system was negotiated and has been maintained free from any illegal purpose.

o Bona Fide Merit System

o Developed Employment Test

o Other DefenseCriteria/qualification does not cause impact on employees group

If employer demonstrates that employment practice doesn’t cause Disparate Impact then there is no

reason for to prove business Necessity

Placing lighter burden of proof in that the employer will have to prove that s didn’t make

efforts to comply w/ the hiring requriement

o Employer’s Goals Worker health safety is recognized as a goal (Fitzpatrick)

o Employer’s reliance on employment criteria as necessity may backfire as a result in a finding of

intentional discrim. if the criteria has not been uniformly applied by employer

Alternative Employment Practices

Alternative employment practice w/o disparate impact that could be used to meet the business requirement

o There is an affirmative defense available to the employer that a specific employment practice does not

have an impact.

The employer has the burden of persuasion on this.

Problem bc the burden of persuasion cannot be on both the & on the same issue:

If the makes out a PFC based on data showing the experience and use then the employer

may rebut by challenging the accuracy of the evidence relied upon. The does not carry the

burden here.

If the establishes DI by national data or other employers, then the employer will have an

affirmative defense/burden of persuasion that its own use does not have DI.

It isn’t enough to show that the employer knew that the test would have a disparate impact.

Plaintiff must provide alternatives that are Equally Effective and less discrimatory. Costs may be

accounted for under this equally effective test. (Ward Cove)

DISPARATE TREATMENT V. DISPARATE IMPACT

Difference bw business necessity & BFOQ:

o BFOQ (Disparate Treatment) less stringent, more of a reasonable standard

Necessary = essential

o Business necessity (Disparate Impact) facially neutral practices

Discriminator’s State of Mind in Impact & Treatment Culpability & Intent

o Argument # 1 Disparate Treatment s have discriminated intentionally & therefore more culpable than

Disparate Impact s who have merely employed facially neutral practices

stringent level of business need required to establish BFOQ defense > then level of need required to

establish business necessity defense

o Argument # 2 Disparate treatment doesn’t necessarily entail any greater culpable intent than the

typical impact case

If employer culpability is to be the measure, than the same strict necessity standard that controls in

BFOQ context should apply to business necessity defense

Intent to discrim. will be found even if the employer isn’t aware that it is motivated by discrim.’s

treatment may be entirely unconscious and still be deemed disparate treatment (that is, intentional)

discrim.

Intent Defined = conscious purpose w/ which one acts to effect a desired goal or result (intent

doesn’t necessarily entail culpability & therefore doesn’t serve as means for distinguishing disparate

treated based & impact based discrim.)

Motive Defined= underlying (possibly unconcioous) cause or reason moving an agent action [So in

arg. #1 we are talking about motive and not intent

Remedies

o Disparate Treatment

Non-willful Equitable relief & compensatory damages

Willful equitable relief & compensatory damages

Malicious or reckless disregard of rights: equitable relief, compensatory damages, & punitive

damages

o Disparate Impact Equitable reief, including non-compensatory monetary damages

BALANCING APPROACH TO BUSINESS NECESSITY DEFENSE (Balancing

Approach v. Rules Approach)

Types of Balancing

o Approach #1 Sliding Scale Balancing: Crt asses whether the gain the derives from the

discriminatory practice is sufficient to outweight the loss of employment opportunity the practice inflicts

on the class

Sliding scale balancing enables crts. to correlate the likely harm to equal employment opportunities

w/ the employer’s justification burden on a case-by-case basis.

o Approach #2: Disregards ’s case entirely once it is made, looking instead at the relationship bw

employer’s practice & its ultimate goal

the importance of the goal the employer seeks to achieve through use of prace, the level of

correlation required bw the practice & goal

focuses on whether an employer’s strong demonstration of its ultimate goal offsets a weak

demonstration of the practice’s efficiency

Balancing Employee Harm Against Employer Harm

o “Classificatory” approach inquires 1st whether the effect of the ’s practice may properly be classified

as “disparately impacting” a protected group” and if so , then a straightforward application of the rule

requiring absolute business necessity would resolve case

Balancing the Importance of An Employer’s Goal Against the Efficacy of Its Practice lesser burden bc the

employer’s goal is deemed especially important. (i.e. sometimes safety)

UNINTENTIONAL DISPARATE IMPACT

DISPARATE IMPACT UNDER ADEA

Cost saving justification for restricting pay that creates a disparate impact against older workers will not be

permissible & will not constitute business necessity

“Reasonable factors other than age” allowable but may be subject to a less strict standard of justification

than “business necessity”

Statues language may adopt a disparate Impact concept of business necessity by applying a test of

reasonableness to the factors that are not age based in the intent sense. But this alone will not make

Disparate Impact applicable.

Page 20 of 85 12/4/06 1:18 PM

INTRODUCTION

A. WHATIS THE PROBLEM

B. WHY IS IT IMPORTANT

C. WHAT ARE THE STAKES FOR &

D. WHAT ARE TWO SIDES OF DEBATE

E. WHAT IS MY POSITION

A. Facts About Race/Color Discriminate

1. Both intentional discrimination and neutral job policies that disproportionately exclude minorities

and that are not job related are prohibited. Equal employment opportunity cannot be denied because

of marriage to or association with an individual of a different race; membership in or association

with ethnic based organizations or groups; or attendance or participation in schools or places of

worship generally associated with certain minority groups.

2. Race-Related Characteristics and Conditions

b. Discrimination on the basis of an immutable characteristic associated with race, such as skin

color, hair texture, or certain facial features violates Title VII, even though not all members of

the race share the same characteristic. Title VII also prohibits discrimination on the basis of a

condition which predominantly affects one race unless the practice is job related and inconsistent

with business necessity. For example, since sickle cell anemia predominantly occurs in African-

Americans, a policy which excludes individuals with sickle cell anemia must be job related and

consistent with business necessity. Similarly, a "no-beard" employment policy may discriminate

against African-American men who have a predisposition to pseudofolliculitis barbae (severe

shaving bumps) unless the policy is job related and consistent with business necessity.

B. Discrimination on the basis of an immutable characteristic associated with race, such

as skin color, hair texture, or certain facial features violates Title VII, even though not

all members of the race share the same characteristic.

Title VII also prohibits discrimination on the basis of a condition which predominantly

affects one race unless the practice is job related and consistent with business necessity.

For example, since sickle cell anemia predominantly occurs in African-Americans, a

policy which excludes individuals with sickle cell anemia must be job related and

consistent with business necessity. Similarly, a "no-beard" employment policy may

discriminate against African-American men who have a predisposition to

pseudofolliculitis barbae (severe shaving bumps) unless the policy is job related and

consistent with business necessity.

http://www.twise.com/barexam/outlines/empdisc.ht

though the body of law that resulted is complex and difficult for law enforcement

managers to apply, certain factors have emerged as keys to assessing the legality of

employment practices that create disparity.(5) The factors include:

prima facie case of sex-based discrimination.On reconsideration en banc, the Court of Appeals vacated the order of the panel and affirmed the district court’s ruling.19 The Court of Appeals in Willingham based its decision on the fun- damental public policy behind Title VII —“‘to achieve equality of em- ployment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other em- ployees’” and “‘to provide equal access to the job market for both men and women.’”20 Since this goal could be met by preventing discrimina- tion based on immutable characteristics or burdening fundamental rights, the Court reasoned that grooming policies would not generally run afoul of Title VII: Equal employment opportunity may be secured only when employers are barred from discriminating against employees on the basis of im- mutable characteristics, such as race and national origin. Similarly, an employer cannot have one hiring policy for men and another for women if the distinction is based on some fundamental right. But a

hiring policy that distinguishes on some other ground, such as groom-

ing codes or length of hair, is related more closely to the employer’s

choice of how to run his business than to equality of employment

opportunity.21

The Court completed its analysis by determining that there was no

violation of Title VII because “ . . . both sexes are being screened with

regard to a neutral fact, i.e., grooming in accordance with generally

accepted community standards of dress and appearance.”22

By focusing on whether policies discriminate on the basis of im-

mutable characteristics or burden fundamental rights, most courts

have concluded that policies that differentiate between male and fe-

male employees are permissible. Thus, every federal circuit to consider

the issue has upheld grooming policies requiring different hair lengths

for men and women under Title VII.23 Similarly, federal courts have

upheld the application of sex specific dress code policies under Title

VII, such as requiring all male employees to wear ties,24 disciplining a

18. Id. 19. See Willingham, 507 F.2d at 1087

20. Id. at 1091.

21. Id. (emphasis in the original).

22. Id. at 1092.

23. Eight federal circuits have considered this issue to date. See Tavora v. New

York Mercantile Exchange, 101 F.3d 907, 908 – 909 (2d Cir. 1996), cert. denied, 117 S. Ct.

1821 (1997); Earwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349, 1351 (4th

Cir. 1976); Willingham, 507 F.2d at 1091 (5th Cir. 1975); Barker v. Taft Broadcasting Co.,

549 F.2d 400, 401 (6th Cir. 1977); Knott v. Missouri Pac. R.R. Co., 527 F.2d 1249, 1252

(8th Cir. 1975); Baker, 507 F.2d at 898 (9th Cir. 1974), cert. denied, 422 U.S. 1046 (1975);

Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387, 1389 (11th Cir. 1998), cert. denied, 119 S. Ct. 509 (1998); Dodge v. Giant Food, Inc., 488 F.2d 1333, 1336 (D.C.

Cir. 1973).

24. Fountain v. Safeway Stores, Inc., 555 F.2d 753, 755 – 56 (9th Cir. 1977). Copyright American Bar Association 23 http://www.bna.com/bnabooks/ababna/laborlawyer/15.1.pdf Copyright American Bar Association 23 http://www.bna.com/bnabooks/ababna/laborlawyer/15.1.pdf Copyright American Bar Association 23 http://www.bna.com/bnabooks/ababna/laborlawyer/15.1.pdf

Page 23 of 85 12/4/06 1:18 PM

2. Adverse Impact

The Griggs Evolution 1: Griggs held that where a Plaintiff can show that a test or requirement has adverse

impact the employer must show business necessity. Explain what business necessity means in the context of the

safety mask requirement vis-à-vis black fire fighters with a dermatological disease, which makes shaving a

hazard. Discuss in the context of cases we have had in class. Be sure to include in your discussion how

concerns about third party safety affect the business necessity inquiry.

Bradley v Pizzaco of Neb(8th circuit as opposed to 11th in Fitzpatrick)

Applying the 1991 Act, the court concluded that defendant’s now must show a

Manifest relationship to the employment in question

A compelling need to maintain the practice

Non-existence of a discriminatory alternative

Despite this court’s have not agreed on a unanimous definition of what constitutes a business necessity .

They have evidence that during the 6 year there were no accidents but the court says that just because there

were no accidents is not determinant evidence that this is a safer alternative

Could drive with your eyes closed and not have an accident but that does not mean that it is safe.

The Griggs Evolution 2: Is Griggs dead? Prior to Wards Cove there were two models of

discrimination. One model of discrimination focused on intent and one model focused on

effects. Many scholars argue that the intent model has swallowed or is swallowing up

the adverse impact model. Explain in light of Wards Cove and related readings.

Must reading for this question is D. Marvin Jones, No Time For Trumpets: Title VII,

Equality and the Fin de Siecle, 92 MICH. L. REV. 2311 (1994).

: i have a section on stereotypes, customer preference, safety, the airline cases

If meets business necessity rule bear burden of establishing that there is an equally valid, less

discriminatory alternative

Stacie214: i will call u later and see where u are

If meets business necessity rule bear burden of establishing that there is an equally

valid, less discriminatory alternative

QUESTIONS

If meets business necessity rule bear burden of establishing that there is an equally valid, less

discriminatory alternative

o Has crt imposed an impossible burden on s?

o In supp. unless the City were willing to try increased merit promotions, how would s ever be able to

produce the kind of evidence that the crt. says is necessary?

o How likely is it that the employer will provide s w/ compelling evidence, less discriminatory

alternatives

Does Baxter mean that any job requirement, no matter how necessary to the employer’s business, will be

insulated from attack under disparate impact analysis?

o Is this result consistent w/ Griggs

Ask whether a facially neutral practice has caused an impact on a protected class

o Have to show the requisite causal connection bw qualification critieria and claimed gender disparity

Public safety

o Worker safety

o Public safety

Public safety v. costumer preference

What population

Disparate Impact theory

I. History.

A. Line of cases

1. Griggs

2. Wards Cove

3. Fitzpatrick

4. Zamlen

a. Spurlock doctrine

B. Law Review Articles

1. Ronald Turner, Thirty Years of Title VII’s Regulatory Regime: Rights, Theories, and Realties, 46:2

Ala. L. Rev. 375, 430 (1995)

2. Mack A. Player, Article: Is Griggs Dead? Reflecting (Fearfully) on Wards Cove Packing Co. v. Atonio,

17 Fla. St. U.L. Rev. 1, 14 (1989)

3. Susan S. Grover, Symposium: Employment Discrimination: symposium article: The Business Necessity

Defense in Disparate Impact Discrimination Cases, 30 Ga L. Rev. 387, 394 (1996)

4. Andrew C. Spiropoulos, Article: Defining the Business Necessity Defense to the Disparate Impact

Cause of Action: Finding the Golden Mean, 74 N.C.L. Rev. 1479, 1552 (1996)

5. Linda Lye, Title VII’s Tangled Tale: The Erosion and Confusion of Disparate Impact and the Business

Necessity Defense, 19 Berkeley J. Emp. & Lab. L. 315, 332 (1998)

6. Laya Sleiman, A Duty to Make Reasonable Efforts and a Defense of the Disparate Impact Doctrine in

Employment Discrimination Law, 72 Fordham L. Rev. 2677, pg 2 (2004)

a. Laya Sleiman, A Duty to Make Reasonable Efforts and a Defense of the Disparate Impact

Doctrine in Employment Discrimination Law, 72 Fordham L. Rev. 2677, 2686 (2004);

7. Dan L. Burk and Julie E. Cohen, Fair Use Infrastructure for Rights Management Systems, 15 Harv. J.L.

& Tech. 41 (2001)

8.

To cite to law reviews or law journals, list the following six elements in order:

The authors' name full as it appears in the article;

The title of the article or headline (this must be underlined);

Volume number of the law review;

The abbreviated name of the law review;

The page number of the article's first page; and

The law review's year of publication.

Consider, for example, the following federal constitutional provision

The elements are as follows:

II. Statute

42 U.S.C §2000e-2(a) & (h)

III. Civil Rights Act of 1991

A. disparate impact based on an impermissible classification and if the defendant fails to show that a

practice is “job related” as well as “consistent with business necessity.”

a. Act fails to:

i. what type of statistics are needed to show a disparate impact

ii. Define job related

iii. Define business necessity

b. can win even if proves business necessity defense by proving that there is another

employment practice that is available to the and that

i. this alternative doesn’t have a discriminatory effect

ii. the employer failed to adopt it

***also balance cost and such

B. Wards Cove (overturned in part and codified in part)

1. Made law of finding in Wards Cove that , as part other prima facie case, must establish that “each

particular challenged employment process causes a disparate impact

a. Act leaves open the possibility that the decision-making process may be analyzed as one

employment practice may be analyzed as one employment practice in the case the can

demonstrate to crt. elements of a respondent’s decision-making process are not capable of

separation for analysis

2. Overruled Wards Cove by placing both burden of production and persuasion on employers to

show business necessity.

a. would not have to bear burden of persuasion w/ regard to the ’s justification for disparate

impact

C. Establish Prima Facie Case:

1. s must show a statistical disparate impact in order to establish a prima facie case of disparate impact

2. no bright line rules to guide crts in deciding whether s’ statistics raise an inference of discrimination,

however, several overreaching principles inform the issue.

a. Four-fifths rule selection rate for any race, sex, or ethnic group which is less than four-

fifths (4/5 or 80%) of the rate for the group with the highest rate will generally be regarded

by the fed. Enforcement agencies as evidence of disparate impact, while a greater than 4/5

rate will generally not be regarded as evidence of disparate impact (lanning)

(1)Rule doesn’t foreclose possibility that a disparity less than 80% can constitute

evidence of disparate impact.

(2)If pass rate for particular group is < 80% of pass rate for others this difference in

pass rates presents evidence of a disparate impact

IV. Weis’s Dissent in Lanning

A. Suggests that should have a duty to take the steps w/in their power to meet a hiring requirement

before they may sue based on that requirement

1. 3 formulations of the duty to make efforts

a. No duty at all susceptible to an attack by opponents who prefer system of pure meritocracy.

i. Critics argue that a departure from Merit leads to quotas and hiring of workers who

simply are not the best qualified

ii. Can be misleading Can result in the statistics showing of prima facie case of disparate

impact

b. An absolute duty to make efforts (bright line)

i. Most consistent w/ notions of meritocracy (meritocracy a social system, which

distributes “privileges, power, wealth, & conduct or attributes)

(1)meritocracy past achievements as seen as indicators of future performance

ii. promotes productivity to the extent that it distributes opportunities and resources based

on predictions of future performance, which benefits society as whole

iii. this duty fails to account for the social, historical and economic forces, that perpetuate

discrimination, for which the disparate impact theory was designed to account for.

iv. This definition may be both more economically efficient and easier for crts to administer

than of the possibilities bc it only requires a determination of what steps were within a

’s power to take

c. A duty to make reasonable efforts in light of historical, social, & economic circumstances

i. Efforts required of would be balanced against the difficulty of taking steps to meet that

requirement

ii. This formulation of the duty may not be as easy to administer as the absolute duty, which

is more bright—line and requires less inquiry into surrounding circumstances. However

it would have benefit of taking revialing historical, social and eco. Situations of a

protected group into consideration

iii. Problem What is reasonable?

(1)Reasonableness may be defined on case-by-case basis by examining the difficulties

members of protected groups face in taking those steps.

(2)Interests at stake:

a) Ensuring employers don't maintain employment requirements that have an

adverse impact on members of a particular group

b) Ensuring the s do not unjustly hold employers liable for failing to meet a hiring

requirement that they were reasonably capable of meeting

iv. This § also, examines possible allocations of the costs that a duty to make reasonable

efforts would entail and discusses policy issues

(1)2 possibilities for allocating the costs of duty to make reasonable efforts:

a) the employer should bear the costs of the duty to make reasonable efforts if the

employer is found liable

b) the applicant should bear the costs of the duty to make reasonable efforts

regardless of the employer’s liability

(2)GR: employee bears his own costs may not be appropriate when an employer is

found liable for Disparate Impact

a) If incurs costs to meet employment requirements, which disproportionately

disadvantages him, then employer arguable should bear those costs bc they were

unnecessarily high or unnecessary in general

Central justification for imposing those costs would be the employer’s liability

(3)Duty to make reasonable efforts may be defined to require that applicants bear costs

of obtaining employment regardless of employer’s liability

2. Consequences of 4 possible ways of integrating the duty to make efforts into the disparate impact model:

a. By contesting ’s statistics

b. By class certification in class actions

c. By creating a duty for to plead & prove; &

d. By creating a defense for to plead & prove

V. Defenses

A. General Overview

B. Balanced Workforce & Bottom Line

C. Bona Fide Occupational Qualifications

D. Business Necessity & Job Relatedness

1. Defining Business [Business Necessity of Employment Standards: The Disparate Impact Challenge]

a. Factors

i. Degree of disparity created by use of the standard

(1)Existence of Prima Facie Case:

a) must demonstrate factually a disparity of legal consequences before the law will

require an employer to demonstrate business necessity

b) mathematical comparison must be made of a particular group’s success rate in

regard to the standard v. the success rate of other groups.

No disparity = no demonstration of business necessity required

Rule of 4/5 has become a rule of thumb for measuring the legal

significance of detected disparities

c) If some statistical disparity is detected, a determination as to whether the disparity

is legally significant is required.

(2)Quantum of Business Necessity Proof Required

a) Existence of a equally significant disparity creates the employer’s burden of

establishing the business necessity of the stand-ard

b) Importance of the numerical results the greater the disparity, the more extreme

the judicial scrutiny to which the employer’s business necessity proof is subjected

(General Rule)

The greater the test’s adverse impact, the higher the correlation (bw test

perform-ance & job performance) which will be required

ii. The demonstrated factual relationship bw achieving the employment standard and

successful performance of the job in question

(1)Direct & Obvious Relationship

iii. Whether achievement of the employment standard is determined by a “neutral” entity

external to the employer

iv. Whether the employment standard focuses on innate, unalterable characteristics of

candidates

v. Whether the job in question has a direct impact on public safety, &

(1)Employer must prove with expert testimony & evidence that the practice is

demonstrably necessary to meeting the goal of worker health/safety

(2)Fitzpatrick Ct recognizes that protecting employees from workplace hazards is a

goal that – as a matter of law – has been found to qualify as an important business

goal for Title VII purposes

a) Business practice is demonstrably necessary to meet a valid business goal.

vi. The availability of effective alternative standards that create a lesser disparity

E. Reductions in Force

12/4/06 1:18 PM

Defenses:

Business Necessity Defense

JOB RELATED

LIGITIMATE BUSINESS OBJECTIVE

REASONABLE ACCOMADATIONS

Worker Safety

LEGITIMATE NONDISCRIMINATORY REASON AND

Public Safety

Customer Preference

BFOQ vs. Business necessity

Harvard Law Review, Vol. 115, No. 2 (Dec., 2001), pp. 642-6

See Hack v. President and Fellows of Yale College, 237 F.3d 81, 101

(2d Cir. 2000)

(“Factors such as the cost or other burdens of the proposed policy are relevant to a

determination as to whether the defendant’s refusal to adopt an alternative housing

procedure was reasonable.”), abrogated on other grounds by Swierkiewicz v. Sorema

N.A., 534 U.S. 506 (2002

Page 34 of 85 12/4/06 1:18 PM

ERODING DISPARATE IMPACT

A. Difficulties In The Prima Facie Case To establish prima facie case of DI, must:

Demonstrate disparity, Identify a specific employment practice which allegedly

caused the disparity, & Prove causation

1. The Impossible Statistical Showing Of Disparity

2. Elusive Proof Of Causation

B. Deference In The Business Necessity Standard

Business Necessity Standard After 1991 CRA

A. Pre-Wards Cove allocation of burdence bears burden of persuasion in 2nd stage of

the analysis

n25 See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1118, (11th Cir. 1993)

(upholding decision to grant summary judgment to employer who successfully argued a

"business necessity" defense). In Fitzpatrick, African-American firefighters claimed

employer's "no-beard" rule amounted to systemic disparate impact discrimination

because many African-American men develop a skin condition from daily shaving. Id. at

1113. The no-beard rule was a business necessity because the respirator masks worn by

firefighters required a cleanly shaven face to work most effectively. Id. at 1120.

o n26 See supra notes 23-25.

o analyzing disparate impact of employer’s clean-shaven grooming policy on

African-American males and holding that the defendant had established an

adequate business justification for the policy)

“In light of this difference between the [plaintiffs’] challenge [alleging that a non-facially

discriminatory policy constituted disparate treatment in the absence of pretext] and the

typical disparate treatment claim, it is not obvious what would constitute the elements of

a prima facie case in this circumstance” (note omitted)).

CUTOUTS FROM PAPER

Once statistical evidence shows that an employment practice has a disparate impact,

the defendant employer must establish that the challenged practice is justified by

“business necessity1.”

1

Disparate impact business necessity (AD), or negating 's PF case; has burden of proof on biz necess.

CUTOUTS FROM PAPER

Once statistical evidence shows that an employment practice has a DI, the employer must establish that the

challenged practice is justified by “business necessity2.”

n17 In this way, the disparate impact cause of action will in theory both increase equal opportunity in

employment by striking down unnecessary barriers and protect genuine employer prerogatives by preserving

necessary requirements.

Second, race, like gender and illegitimacy, see Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), is

an immutable characteristic which its possessors are powerless to escape or set aside. While a classification is

not per se invalid because it divides classes on the basis of an immutable characteristic, see supra, at 355-356, it

is nevertheless true that such divisions are contrary to our deep belief that "legal burdens should bear some

relationship to individual responsibility or [361] wrongdoing," Weber, supra, at 175; Frontiero v. Richardson,

411 U.S. 677, 686 (1973) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.), and that advancement

sanctioned, sponsored, or approved by the State should ideally be based on individual merit or achievement, or

at the least on factors within the control of an individual. See UJO, 430 U.S., at 173 (opinion concurring in

part); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 566 (1947) (Rutledge, J., dissenting).

Because this principle is so deeply rooted it might be supposed that it would be considered in the legislative

process and weighed against the benefits of programs preferring individuals because of their race. But this is not

necessarily so: The "natural consequence of our governing processes [may well be] that the most 'discrete and

insular' of whites . . . will be called upon to bear the immediate, direct costs of benign discrimination." UJO,

supra, at 174 (opinion concurring in part). Moreover, it is clear from our cases that there are limits beyond

which majorities may not go when they classify on the basis of immutable characteristics. See, e. g., Weber,

supra. Thus, even if the concern for individualism is weighed by the political process, that weighing cannot

waive the personal rights of individuals under the Fourteenth Amendment. See Lucas v. Colorado General

Assembly, 377 U.S. 713, 736 (1964).

2

In sum, because of the significant risk that racial classifications established for ostensibly benign purposes can

be misused, causing effects not unlike those created by invidious classifications, it is inappropriate to inquire

only whether there is any conceivable basis that might sustain such a classification. Instead, to justify such a

classification an important and articulated purpose for its use must be shown. In addition, any statute must be

stricken that stigmatizes any group or that singles out those least well represented in the political process to bear

the brunt of a benign program. Thus, our review under the Fourteenth Amendment should be strict -- not [362]

"'strict' in theory and fatal in fact," 36 because it is stigma that causes fatality -- but strict and searching

nonetheless.

CITATIONS 12/4/06 1:18 PM

1. Ronald Turner, Thirty Years of Title VII’s Regulatory Regime: Rights, Theories, and Realties, 46:2

Ala. L. Rev. 375, 430 (1995)

a. Page #: 2

2. Mack A. Player, Article: Is Griggs Dead? Reflecting (Fearfully) on Wards Cove Packing Co. v. Atonio,

17 Fla. St. U.L. Rev. 1, 14 (1989)

a. Page #: 7

3. Marc. A Koonin, Esq., Avoiding Claims of Discrimination Based on Personal Appearance, Grooming,

and Hygiene Standards, 15 Lab. Law. 19, 20 (Summer 1991).

a. Page #: 11

4. Susan S. Grover, Symposium: Employment Discrimination: symposium article: The Business

Necessity Defense in Disparate Impact Discrimination Cases, 30 Ga L. Rev. 387, 394 (1996)

a. Page #: 10

5. Kimberly A. Yuracko, Trait Discrimination as Race Discrimination: An Argument About Assimilation,

74 Geo. Wash. L. Rev., 365, 375 (2006).

a. Page #: 13

6. 3 U. Pa. J. Const. L. 646, 710E

a. Page #: 13

7. David E. Hollar, Physical Ability Tests and Title VII, 67 U. Chi. L. Rev. 777, 781 (2000)

a. Page #: 7

8. Andrew C. Spiropoulos, Article: Defining the Business Necessity Defense to the Disparate Impact

Cause of Action: Finding the Golden Mean, 74 N.C.L. Rev. 1479, 1552 (1996)

a. Page 10

9. Linda Lye, Title VII’s Tangled Tale: The Erosion and Confusion of Disparate Impact and the Business

Necessity Defense, 19 Berkeley J. Emp. & Lab. L. 315, 332 (1998)

a. Page #: 8

10. Laya Sleiman, A Duty to Make Reasonable Efforts and a Defense of the Disparate Impact Doctrine in

Employment Discrimination Law, 72 Fordham L. Rev. 2677, pg 2 (2004)

a. Page #: 7, 8

11. Dan L. Burk and Julie E. Cohen, Fair Use Infrastructure for Rights Management Systems, 15 Harv. J.L.

& Tech. 41 (2001)

i.

Laya Sleiman, A Duty to Make Reasonable Efforts and a Defense of the Disparate Impact

Doctrine in Employment Discrimination

Cited: 55 Duke L. J. 641 [*pg 641]Page 42 of 85 12/4/06 1:18 PM

   Cited: 55 Duke L. J. 641

[*pg 641]

TITLE VII DISPARATE IMPACT SUITS AGAINST STATE GOVERNMENTS AFTER

HIBBS AND LANE

CLAUDE PLATTON

INTRODUCTION

I. BACKGROUND: STATE SOVEREIGN IMMUNITY AND DISPARATE IMPACT

   A. Congressional Power and State Sovereign Immunity

   B. Title VII's Disparate Impact Provision

   C. Lower Court Challenges to Title VII's Abrogation of State Sovereign Immunity

II. THE RECORD-REVIEW INQUIRY

   A. Title VII's Legislative Record

   B. The Need for Two Tiers of Record Review

III. TITLE VII DISPARATE IMPACT THEORY'S CONGRUENCE AND PROPORTIONALITY

   A. Hibbs and Forms of Discrimination

   B. The Disparate Impact Remedy Compared with the FMLA and Title II of the

ADA

   C. The Value of a Broadly Defined Disparate Impact Theory

CONCLUSION

FOOTNOTES

INTRODUCTIONThe disparate impact theory of Title VII of the Civil Rights Act of 19641 enables employees and job applicants

to challenge employment practices that, although neutral on their face, have a disproportionate, adverse effect

on the basis of race, sex, or national origin.2 It permits challenges to a wide variety of employment practices --

including standardized tests, diploma requirements, height and weight requirements, and subjective evaluations

-- that have stood in the way of equal access to the workplace and to advancement.3 The theory has been

available to private- and public-sector employees alike since 1973.4

In recent years, the Supreme Court's "federalism revolution" has narrowed Congress's ability to override state

sovereign immunity with civil rights legislation.5 As a result, whether Congress retains the power to authorize

Title VII suits against state governments has [*pg 642] become uncertain.6 The Court recognized in 1976, in

Fitzpatrick v. Bitzer, that Title VII abrogates state sovereign immunity.7 Although several subsequent

federalism decisions have reaffirmed that Congress may abrogate state sovereign immunity through its

enforcement power under Section Five of the Fourteenth Amendment,8 the stringent abrogation analysis applied

in those cases undermined the holding in Fitzpatrick and cast doubt upon Title VII's future as a remedy for state

employment discrimination.9

In Nevada Department of Human Resources v. Hibbs,10 however, the Supreme Court, for the first time since

reinvigorating the state sovereign immunity doctrine, upheld a federal statute against a sovereign immunity

challenge, concluding that state employees could sue their employers for violating the family-leave provision of

the Family and Medical Leave Act (FMLA).11 The following year, in Tennessee v. Lane,12 the Court upheld the

private suit provision of Title II of the Americans with Disabilities Act (ADA) against a state sovereign

immunity challenge.13 Because of the similarities between these statutes and Title VII, commentators have

concluded that these cases put Title VII's abrogation of state sovereign immunity on much firmer doctrinal

footing.14 It is less clear, however, that these cases authorize disparate impact suits against state governments.15

Because disparate impact liability arises from conduct that would not be [*pg 643] unconstitutional under equal

protection analysis,16 the theory may exceed Congress's remedial power under Section Five even if other aspects

of Title VII do not.

This Note argues that Hibbs and Lane establish beyond peradventure that Title VII's disparate impact theory

validly abrogates state sovereign immunity. Far from doctrinal aberrations, these two cases carry forward

suggestions in the Supreme Court's earlier state sovereign immunity cases that racial, gender, and national-

origin discrimination call for a different, more nuanced abrogation analysis -- one that recognizes that

discrimination takes many forms and that is more deferential to Congress's chosen means of responding to it.

Under the logic of Hibbs and Lane, Title VII's disparate impact provision is an appropriate legislative response

to this country's long history of discrimination against women and racial and ethnic minorities, and it applies to

government and private employers alike.

Part I of this Note provides background, briefly describing both the Supreme Court's state sovereign immunity

jurisprudence and Title VII disparate impact claims. It also discusses several pre-Hibbs lower court decisions

considering whether Title VII disparate impact claims abrogate state sovereign immunity. Part II explains that

Title VII satisfies the first of the two major requirements for abrogation, that Congress enacted the legislation in

response to a pattern of unconstitutional discrimination. It also considers why the Court in Hibbs announced a

new way of assessing the sufficiency of the legislative record. Finally, Part III shows that disparate impact

satisfies the second major requirement for abrogation, that the remedy chosen be congruent and proportional to

the pattern of unconstitutional discrimination. Although the disparate impact theory prohibits conduct that is not

itself unconstitutional, Hibbs and Lane signal that Congress may enact broad prophylactic legislation to prevent

infringement of rights that receive heightened scrutiny. Part III also argues that defining the disparate impact

theory broadly, rather than merely as a remedy for intentional discrimination, is essential if the theory is to

achieve remedial objectives.

[*pg 644]

I. BACKGROUND: STATE SOVEREIGN IMMUNITY AND

DISPARATE IMPACTThis Part first outlines the requirements for congressional abrogation of state sovereign immunity, focusing on

the aspects of the analysis most relevant to evaluating the disparate impact theory. It then briefly describes the

theory and some key statutory features. Finally, it reviews several lower court decisions that, in the wake of the

Supreme Court's pre-Hibbs state sovereign immunity decisions, grappled with the question of whether Title VII,

and specifically its disparate impact provision, could abrogate the states' newly strengthened sovereign

immunity.

A. Congressional Power and State Sovereign Immunity

Congress may override the states' Eleventh Amendment immunity17 to suits for money damages only when it

legislates pursuant to its power under Section Five of the Fourteenth Amendment.18 Congress's Section Five

power, however, only authorizes legislation that "enforces" the guarantees of Section One of the Fourteenth

Amendment as the Supreme Court itself has defined them.19 The Court has rebuffed congressional efforts to

increase the level of protection that rights would receive under Section One, explaining that Congress may not

use its remedial powers to "redefine" the meaning of the amendment.20 The Court has [*pg 645] developed a

three-step inquiry with which to determine whether a statute authorizing private suits against state governments

is valid Section Five legislation.21 These steps are as follows: first, identify the right at issue;22 second,

determine whether there is a "history and pattern" of state discrimination infringing this right;23 and third, assess

whether Congress's chosen remedy is a "congruent and proportional" response to this history and pattern of

discrimination.24 This Section will briefly consider the first step of the inquiry and then turn to the second and

third steps in greater detail.

The first step identifies "with some precision" the right that the statute aims to protect and determines the level

of scrutiny that courts show to the right.25 The Court has invalidated two antidiscrimination statutes protecting

rights that courts review under a rational basis standard. In Kimel v. Florida Board of Regents,26 the Court

concluded that the Age Discrimination in Employment Act (ADEA) implicated the right to be free of

unconstitutional age discrimination, a right that receives only rational basis review.27 Similarly, in Board of

Trustees of the University of Alabama v. Garrett,28 the Court held that Title I of the ADA implicated the right to

be free of disability discrimination, which also receives rational basis review.29 In both cases, the Court noted

that under this minimal standard of review, a court would find very little discriminatory conduct

unconstitutional -- only conduct that is "irrational."30

In contrast, the Court upheld two statutes in which the right at issue received heightened scrutiny. In Hibbs, the

Court determined that the FMLA's family-leave provision aimed to protect "the right to [*pg 646] be free from

gender-based discrimination in the workplace,"31 and in Lane, it held that Title II of the ADA implicated the

right to be free of disability discrimination that would infringe the fundamental right of access to the courts.32

Because the rights at issue in these cases receive heightened scrutiny, a great deal of conduct that infringes them

would be unconstitutional.33 The level of scrutiny the right receives is crucially important to the second and

third steps of the abrogation inquiry.

1. The Requirement of a History and Pattern of Discrimination. In the second step, courts review a statute's

legislative record to determine whether it contains sufficient evidence of a history and pattern of discrimination

to justify remedial legislation abrogating state sovereign immunity.34 When the right implicated by the statute is

one that courts review under a rational basis standard, the record review is stringent and courts approach the

evidence of unconstitutional state conduct skeptically. In Garrett, the Court credited only legislative evidence

directly demonstrating disability discrimination by the states.35 It rejected, as irrelevant, evidence of disability

discrimination in the private sector and in local government employment.36 Moreover, when rational basis

review is implicated, the evidence of unconstitutional state conduct must be extensive and clear. For example,

the Court concluded in Garrett that Congress had documented relatively few incidents of unconstitutional

discrimination, despite holding extensive hearings on disability discrimination, and that these few incidents

failed to establish a pattern of state discrimination.37 The Court also discounted a number [*pg 647] of incidents

of discrimination against disabled state employees because it found them insufficiently detailed to permit the

conclusion that they described irrational, unconstitutional conduct rather than rational unwillingness to make

accommodations.38 Similarly, the Court concluded in Kimel that Congress had not documented sufficient

evidence of age discrimination by state employers to justify a legislative remedy.39 It made a similar

determination in City of Boerne v. Flores40 regarding state infringement of the right to free exercise of religion.41

Review of the legislative record is less stringent when Congress seeks to protect a right that courts review under

a heightened-scrutiny standard. In Hibbs, the FMLA satisfied the record requirement even though the evidence

before Congress of unconstitutional gender-based discrimination in the administration of leave benefits was not

significantly more extensive or detailed than the evidence found inadequate in Garrett.42 The Court credited

evidence that it would have rejected under Garrett, such as gender-based disparities in private-sector family-

leave policies.43 It also validated Congress's concern that "stereotype-based beliefs about the allocation of

family duties" produce such disparities.44 As Justice Kennedy objected in dissent, little of this evidence directly

established that the states were responsible for unconstitutional discrimination.45 Similarly, in Lane, the Court

relied upon "statistical, legislative, and anecdotal evidence of the widespread exclusion of persons with

disabilities from the enjoyment of public services" without inquiring as deeply as it had in [*pg 648] Garrett

whether this evidence proved unconstitutional conduct by the states.46

In both Hibbs and Lane, the Court referred to its own prior decisions involving the right implicated by the

statute and read these cases as further evidence of a history and pattern of discrimination. In Hibbs, the Court

used its jurisprudence to help establish that Congress was justified in enacting legislation to combat gender

discrimination.47 Lane reviewed prior cases dealing with state discrimination against the disabled and found that

they documented "pervasive unequal treatment in the administration of state services and programs, including

systematic deprivations of fundamental rights" that supported the enactment of the ADA.48 As the Court

explained in Hibbs, the history and pattern of state constitutional violations that the record-review inquiry seeks

to uncover is closely related to heightened scrutiny under equal protection.49 Affording a right the protection of

heightened scrutiny, then, is the Court's own response to clear evidence of a history and pattern of government

discrimination against a protected group. The fact of heightened scrutiny, therefore, resolves in advance the

question that the record review seeks to answer;50 thus, a more deferential, less exacting form of review is

appropriate for legislation protecting rights that receive heightened scrutiny.

[*pg 649]

2. The Congruence and Proportionality Requirement. The third step of the abrogation inquiry considers whether

Congress's chosen remedy is congruent and proportional to the history and pattern of discrimination.51 This

inquiry distinguishes between legislation that remedies violations of constitutional rights and legislation that

attempts to redefine the scope of the right itself.52 To deter or remedy violations of a right effectively, Congress

may prohibit some conduct that would not itself be held unconstitutional under equal protection doctrine.53 A

statute that prohibits a great deal of conduct that would not be unconstitutional, however, may be out of

proportion to the constitutional violation it purports to remedy and may instead represent an attempt to redefine

the right itself.54 Applying the congruence and proportionality test, the Supreme Court has held that the ADEA

and ADA are not congruent and proportional responses to unconstitutional state discrimination against,

respectively, older persons and persons with disabilities.55 In Kimel, the Court invalidated the ADEA's

abrogation of state sovereign immunity because it "prohibit[ed] substantially more state employment decisions

and practices than would likely be held unconstitutional under the applicable equal protection, rational basis

standard."56 Rather than enforcing the constitutional prohibition on age discrimination in employment, the

ADEA "effectively elevated the standard for analyzing age discrimination to heightened scrutiny."57 The Court

analyzed Title I of the ADA in Garrett similarly: by prohibiting disability discrimination and mandating

accommodation of employees' disabilities, Title I prohibited far more conduct than would be unconstitutional

under equal protection analysis and imposed a significant burden on state governments.58

[*pg 650]

When the statute in question aims to protect a right that receives heightened scrutiny, however, Congress has

significantly greater latitude to prohibit conduct that would not be unconstitutional. In Hibbs, the Court upheld

the provision of the FMLA authorizing private suits against state employers for failing to provide twelve weeks

of unpaid leave annually to employees caring for ill spouses, children, or parents.59 The Court concluded that

the provision was appropriate remedial legislation because it targeted the "formerly state-sanctioned stereotype

that only women are responsible for family caregiving" that had led employers to discriminate against women

in hiring and promotion.60 In Lane, the Court sanctioned another remedy against state governments: Title II of

the ADA's requirement that states accommodate disabilities if failing to do so would burden disabled persons'

fundamental right of access to the courts.61

B. Title VII's Disparate Impact Provision

Broadly speaking, there are two theories of liability under Title VII.62 The first theory, disparate treatment,

prohibits intentional discrimination;63 liability requires proof of discriminatory animus.64 Under the second

theory, disparate impact, an employer may be liable if it makes use of an employment practice that, although

seemingly neutral, has a disproportionately adverse effect on one of the groups protected by the statute.65 The

employer need not have [*pg 651] been motivated by discriminatory animus; what matters is the practice's

effect.66

The disparate impact theory was not explicitly part of Title VII as originally enacted.67 Rather, the Supreme

Court established the theory in 1971, in Griggs v. Duke Power Co.,68 based upon its understanding of the

language and purpose of the statute.69 The theory was used for several decades, with Griggs as its doctrinal

underpinning, until Congress codified it as part of Title VII in the Civil Rights Act of 199170 in response to

several Supreme Court decisions significantly narrowing the theory's scope.71 As enacted in 1964, Title VII did

not apply to state and local government employers; Congress amended the statute to cover them as part of the

Equal Employment Opportunity Act of 1972 (EEOA).72

Griggs involved a Title VII disparate treatment suit by African-American employees who challenged their

employer's practice of requiring high school diplomas and intelligence tests for placement in any but its lowest-

paying department.73 The employer had openly discriminated against African-American employees prior to the

effective date of Title VII and had added the intelligence-test and diploma requirements on the day Title VII

went into effect.74 These requirements had the effect of disproportionately limiting African-American

employees to the lowest-paying department, thus [*pg 652] preserving the effects of the company's pre-Title

VII discriminatory practices.75 Nevertheless, the district court found that the company had no intention to

discriminate, and it dismissed the plaintiffs' claim.76 The Supreme Court reversed, holding that Title VII

"proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.

The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be

shown to be related to job performance, the practice is prohibited."77 The employer had failed to show that

either its diploma or intelligence-test requirement bore "a demonstrable relationship to successful performance

of the jobs for which it was used."78 According to the Court, "absence of discriminatory intent does not redeem

employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are

unrelated to measuring job capability."79

As the language of Griggs indicates, the primary purpose of the disparate impact theory is to remove barriers to

employment opportunity that disproportionately burden women or racial or ethnic minorities.80 It is available to

challenge both objective employment standards, such as standardized tests, and also subjective practices, such

as job interviews, in which supervisors' exercise of discretion has a disparate impact.81 The theory has been used

to challenge a wide range of employment practices, including (although not always successfully) policies

against hiring persons with arrest or conviction records, interviews, experience requirements, no-spouse rules,

and no-beard policies.82

[*pg 653]

Since Griggs, a tripartite structure of proof has emerged for disparate impact claims.83 A plaintiff must put

forward a prima facie case by identifying a particular employment practice that, although facially neutral, has a

disproportionate, adverse impact on a protected group.84 Generally, plaintiffs bringing disparate impact claims

must not only show that a protected group is underrepresented in the employer's workforce, but also must

identify the specific practice that gives rise to the discrepancy.85 The defendant may then attempt to rebut the

prima facie case86 or else show, as an affirmative defense, that the practice is "job related for the position in

question and consistent with business necessity."87 Finally, if the employer proves this defense, the plaintiff may

yet prevail by showing that the employer refuses to adopt an "alternative employment practice" that would have

a less-discriminatory effect.88 Such a showing undermines the employer's claim that the practice is a business

necessity.89 It also may suggest that the employer's claim of business necessity is a pretext for intentional

discrimination.90

C. Lower Court Challenges to Title VII's Abrogation of State Sovereign

Immunity

Although the Supreme Court held in 1976 that Title VII abrogated state sovereign immunity,91 lower courts

heard new [*pg 654] challenges to Title VII in the wake of the Court's decisions reinvigorating state sovereign

immunity and contracting the scope of Congress's Section Five power. Following these decisions, three federal

courts of appeals have considered, and upheld, Title VII's abrogation of state sovereign immunity; two of them

specifically decided challenges to abrogation in the context of disparate impact claims.92 The ways in which

these courts reconciled the disparate impact theory with the abrogation inquiry, however, are somewhat

troubling, because they may signal a narrowing of the theory's scope.

All three courts held that Congress had extended Title VII to the states in response to evidence of a pattern of

discrimination in state employment. To reach this conclusion, the Eleventh Circuit, in In re Employment

Discrimination Litigation Against Alabama93 cited the EEOA's legislative history, which "documented the

troubling persistence of race discrimination in public employment";94 the court also took notice of "this nation's

sad history of racial domination and subordination."95 Because the court was writing before Garrett, which

announced the rigorous record-review inquiry,96 this limited review of Title VII's legislative history is

unsurprising. The Eighth Circuit, in Okruhlik v. University of Arkansas,97 however, reached the same result after

Garrett. The court cited the same legislative history as had the Eleventh Circuit and additionally cited the

Senate's floor debates.98 It further noted that when Congress extended Title VII to the states it was also

gathering evidence regarding gender discrimination for other pending civil rights provisions, including the

Equal Rights Amendment (ERA) and Education Opportunity Act.99 The court therefore concluded that

Congress had had before it [*pg 655] evidence of a history and pattern of both race and gender

discrimination.100 The Seventh Circuit, in Nanda v. Board of Trustees of the University of Illinois,101 followed

Okruhlik in taking notice of the other legislation pending before Congress when the EEOA was enacted.

Additionally, it found support in "the well-documented history of gender [and race] discrimination in this

Nation . . . that is embodied in the Supreme Court's own jurisprudence."102

The Eleventh and Eighth Circuits, the two courts of appeals to consider state sovereign immunity challenges to

the disparate impact theory, applied the congruence and proportionality analysis in somewhat different ways.

The Eleventh Circuit characterized the disparate impact theory as a remedy for covert intentional discrimination

that would be difficult to prove under the disparate treatment theory.103 The court explained that "[alt]hough the

plaintiff is never explicitly required to demonstrate discriminatory motive, a genuine finding of disparate impact

can be highly probative of the employer's motive."104 Therefore, the court concluded,

Our analysis of the mechanics of a disparate impact claim has led us unavoidably to the conclusion that

although the form of the disparate impact inquiry differs from that used in a case challenging state action

directly under the Fourteenth Amendment, the core injury targeted by both methods of analysis remains the

same: intentional discrimination.105

The court thus found that Title VII's disparate impact provision, as a remedy for intentional discrimination that

is difficult to prove, was a congruent and proportional response to intentional discrimination.106

The Eighth Circuit reasoned that "employment practices, adopted without a deliberately discriminatory motive,

may in operation be functionally equivalent to [unconstitutional] intentional discrimination . . . [and] may have

effects that are indistinguishable [*pg 656] from intentionally discriminatory practices."107 Therefore, the court

held, the disparate impact theory was a "'prophylactic' response to a pattern of unconstitutional state action

[that] is proportional and congruent."108 The court did not explain precisely what this conceptualization entails;

the Supreme Court, in the opinion from which this characterization of disparate impact is taken, indicated that it

may include both practices that perpetuate the effects of historical discrimination and those that rely on

unconscious stereotypes.109

Thus, both circuits were able to find a rationale, prior to the Supreme Court's decisions in Hibbs and Lane, for

concluding that Title VII's disparate impact theory satisfied the congruence and proportionality test. Neither

court explored in any depth what effect defining disparate impact in terms of intentional discrimination -- either

as a remedy for intentional discrimination that is difficult to prove, or as a remedy for conduct that is the

"functional equivalent" of intentional discrimination -- would have on how the theory operates. As

discussed in Part III, there is some reason to think that these conceptualizations,

particularly the Eleventh Circuit's, may significantly limit the disparate impact theory's

reach.

II. THE RECORD-REVIEW INQUIRYNo court reviewing Title VII has yet performed an extensive review of its legislative record.110 This Part shows

that this record satisfies the more deferential review shown to rights that receive heightened scrutiny: Congress

extended Title VII to the states in response to evidence of race, gender, and national-origin discrimination by

state employers. This Part then turns to the record-review inquiry itself and considers why the Court established

this second form of review in Hibbs. It concludes that the continued viability of the state sovereign immunity

doctrine required that it do so: not only would the Garrett test's skepticism be incongruous when the rights

involved have been judicially recognized as important, but the test also would have put the Court in the

awkward position of [*pg 657] having to disbelieve that the states have ever discriminated on the basis of race,

gender, or national origin.

A. Title VII's Legislative Record

Review of Title VII's legislative record reveals that when Congress extended Title VII to the states it was

responding to a perceived nationwide pattern of unequal employment opportunity for women and for racial and

ethnic minorities -- a pattern that resulted, in significant part, from intentional discrimination. In extending Title

VII, Congress relied in large part on a report by the United States Commission on Civil Rights111 regarding

racial and national-origin discrimination in state and local government employment.112 According to the House

Committee on Education and Labor, the Commission's report documented that "widespread discrimination

against minorities exists in State and local government employment, and that the existence of this

discrimination is perpetuated by the presence of both institutional and overt discriminatory practices."113 The

Committee noted that "[t]he report cites widespread perpetuation of past discriminatory practices through de

facto segregated job ladders, invalid selection techniques, and stereotyped misconceptions by supervisors

regarding minority group capabilities."114 Moreover, the report found that "employment discrimination in State

and local governments is more pervasive than in the private sector."115

The Commission's report, which studied state and local government employment in seven large metropolitan

areas, recorded instances of intentional discrimination as well as discriminatory attitudes among supervisors and

institutionalized barriers to equal [*pg 658] opportunity. Although the Commission found that "blatant racism

openly admitted by a public official [was] atypical," it encountered "[s]egregated facilities, segregated work

assignments, social ostracism, and lack of courtesy" in government employment.116 It also observed that

government officials commonly expressed indifference to issues of equal employment opportunity, particularly

in the context of promotions, and it further determined that administrators of merit-based promotion systems

"frequently violated the merit principle and practiced conscious, even institutionalized, discrimination."117 The

report found that African Americans, and to a lesser extent Latinos, faired poorly compared to their white

counterparts in obtaining the more desirable jobs in state government.118

The Senate Committee on Labor and Public Welfare also reviewed a Census Bureau report showing that "while

some progress has been made toward bettering the economic position of the Nation's black population, the

avowed goal of social and economic equality is not yet anywhere near a reality."119 According to the report,

African Americans in 1970 were "concentrated in the lower-paying, less prestigious positions in industry and

[were] largely precluded from advancement to the higher paid, more prestigious positions."120 The

unemployment rate for African Americans was also considerably higher than that of whites.121 The report

observed that average pay among Latinos was also lower than for whites and that Latinos had higher rates of

unemployment than whites.122 On the basis of all of these findings, Congress was justified in concluding that it

was faced with a pervasive problem of state race and national-origin discrimination.

Congress also had before it evidence regarding gender-based employment discrimination. Research conducted

by the Department [*pg 659] of Labor's Women's Bureau showed that women received substantially lower

salaries than their male counterparts for comparable work.123 Moreover, far fewer women had earnings in the

highest pay bracket recognized in the survey.124 The House Committee on Education and Labor concluded that

"[w]omen are subject to economic deprivation as a class. Their self-fulfillment and development is [sic]

frustrated because of their sex. Numerous studies have shown that women are placed in the less challenging, the

less responsible and the less remunerative positions on the basis of their sex alone."125 Congress, on the basis of

this evidence, concluded that "blatantly disparate treatment" persisted in employment,126 but did not draw

specific conclusions about state governments.127

Three aspects of the Court's review of the FMLA's legislative record in Hibbs are particularly relevant in

assessing the adequacy of Title VII's legislative record. First, the Court expanded the types of evidence that it

would recognize as suggestive of discrimination. It cited approvingly statistical evidence of disparities, such as

research indicating that many private employers offered family leave only to female employees; under the

Garrett test, such evidence would be [*pg 660] irrelevant both because it does not offer direct evidence of

unconstitutional conduct and because it does not directly implicate state-government conduct.128 This suggests

that, in extending Title VII, Congress was justified in relying not only upon direct evidence of intentional

discrimination by state governments, but also upon the voluminous numerical data it had collected regarding

segregation and disparities in both government and private-sector employment. In particular, Congress

justifiably relied upon data showing that female employees were paid less than men and that African-American

employees tended to hold lower-paying and less-prestigious positions than white workers.

Second, the Court in Hibbs permitted Congress to draw inferences about discrimination from the data before

it.129 Its review of maternity-leave statutes revealed that only eleven states offered male and female employees

different amounts of leave. Similarly, its review of family-leave statutes showed that only seven states offered

childcare leave to women but not to men.130 A number of states, however, did not guarantee family leave to any

employees, relying instead on voluntary or discretionary leave programs, and Congress had received evidence

that such discretionary policies could "leave[] 'employees open to discretionary and possibly unequal

treatment.'"131 The Court permitted Congress to infer, from this potential for discrimination, that "even where

state laws and policies are not facially discriminatory, they [are] applied in discriminatory ways."132 [*pg 661]

This deference to congressional inferences is important for Title VII. In extending Title VII to the states,

Congress inferred a broad pattern of discrimination by combining documented instances of intentional

discrimination by state governments with extensive numerical evidence of race- and gender-based disparities in

pay and promotions. The Court in Hibbs approved this kind of legislative reasoning.

Third, and perhaps most fundamentally, the Court in Hibbs concluded that its own gender-discrimination

jurisprudence could provide evidence of a history and pattern of state gender discrimination.133 Because Title

VII targets race, gender, and national-origin discrimination, all of which receive heightened scrutiny under the

Supreme Court's equal protection jurisprudence,134 this doctrinal shift has great import for Title VII. The Court

specifically indicated in Hibbs that it would review Title VII in the context of its prior cases: after reviewing its

gender-discrimination jurisprudence, the Court concluded that "Congress responded to this history of

discrimination by abrogating States' sovereign immunity in Title VII of the Civil Rights Act of 1964."135 When

the substantial legislative record of state discrimination is read against the backdrop of the Court's equal

protection jurisprudence, Title VII is on solid ground.

B. The Need for Two Tiers of Record Review

After Hibbs, there are two forms of record-review inquiry: one for rights that receive only rational basis review

and another for rights that receive heightened scrutiny. This revision of the sovereign immunity doctrine was

necessary because the Garrett record-review inquiry is inadequate when applied to rights that receive

heightened scrutiny. In several of its recent federalism cases, the Court has indicated that at least certain key

antidiscrimination statutes, such as [*pg 662] the Voting Rights Act, validly abrogate state sovereign

immunity.136 In Garrett, however, the Court established a doctrinal test that was flawed in two ways. First, the

test is weighted too heavily against abrogation, perhaps making abrogation impossible even when the legislation

under review is truly responsive to a history and pattern of discrimination. Second, applied to a statute like Title

VII, the test would put the Court in the politically and intellectually awkward position of doubting that the states

had ever been involved in pervasive racial, gender, and national-origin discrimination.

First, the Garrett record review prevents Congress from offering additional protection to rights that the Court

has decreed should receive only minimal scrutiny. Thus, although the test is neutral on its face -- it merely

inquires whether Congress documented a pattern of state violations of the specific constitutional right before

attempting to abrogate state sovereign immunity -- in effect it would invalidate most legislation protecting

rights that receive only rational basis review. Although the Court has claimed that the Garrett test would be

easier to satisfy for rights that receive heightened scrutiny,137 in practice heightened scrutiny would only make it

more likely that apparently discriminatory conduct really represented unconstitutional conduct. It would not

relieve Congress's enormous burden of documenting a sufficiently large number of incidents of discrimination

such that the Court would feel comfortable inferring a pattern.

The problem with the Garrett inquiry is that there is no logical connection between a statute's societal

importance and the strength of its legislative record. Congress may have been entirely justified in enacting a

core antidiscrimination statute and yet failed to place in the legislative record sufficiently detailed evidence with

which the Court could "check Congress's homework"138 years later.139 The [*pg 663] Garrett test is a useful tool

with which to constrain congressional decisionmaking. But if, as the Court had suggested, the Section Five

power should be more expansive when Congress acts to remedy racial, gender, and national-origin

discrimination, the Court needed a different doctrinal tool with which to review these statutes. The Court

provided this tool in Hibbs by establishing a more lenient form of record-review inquiry.

Second, the Garrett test poses a question that the Court would find difficult to ask with regard to race, gender,

or national-origin discrimination: whether Congress had a sufficient basis for believing that states are

responsible for unconstitutional discrimination.140 It was politically and doctrinally acceptable in Garrett for the

Court to engage in a rigorous and highly skeptical review of Congress's assertion that states discriminate against

disabled workers.141 It was also acceptable for it to speak of rational disability discrimination142 and to doubt the

contention that states' refusal to accommodate the disabled in public facilities bears on the question of whether

they discriminate against the disabled in the workplace.143 With a statute aimed at race, gender, or national-

origin discrimination, however, such doctrinal skepticism would be troubling; state discrimination against

women and racial and ethnic minorities is unquestionably part of this nation's history. The Hibbs test, by

reviewing the legislative record more generously and taking notice of equal protection jurisprudence, relieves

the Court of having to ask whether Congress has a basis for believing that racial, gender, or national-origin

discrimination are really problems in need of a remedy.

[*pg 664]

III. TITLE VII DISPARATE IMPACT THEORY'S CONGRUENCE

AND PROPORTIONALITYAfter Hibbs and Lane, Congress may use its Section Five power to provide broad remedies for discrimination

against women and racial and ethnic minorities, and it has significant discretion in selecting those remedies.

This Part argues that Title VII's disparate impact theory is within Congress's Section Five power to enact

prophylactic legislation and that a disparate impact-based remedy is congruent and proportional even when not

narrowly defined as merely a remedy for hard-to-prove intentional discrimination. First, this Part shows that

Hibbs recognized that forms of discrimination other than intentional constitutional violations are legitimate

targets of Section Five legislation, and it explains that, under this reasoning, prohibiting employment practices

that have a disparate impact is a legitimate congressional goal. It then shows that disparate impact is similar to

the remedies found congruent and proportional in Hibbs and Lane. Finally, it examines the Supreme Court's

treatment of the disparate impact theory outside the state sovereign immunity context and argues that a broad

conception of disparate impact, not defined merely as a remedy for covert intentional discrimination, is essential

if the theory is to achieve its remedial purposes.

A. Hibbs and Forms of Discrimination

In Hibbs, the Court affirmed that even gender discrimination that would not be unconstitutional can be worthy

of legislative response; Hibbs authorizes Congress to target neutral practices that have a disparate impact. The

Court took seriously -- and affirmed that Congress may target with its Section Five power -- entrenched social

roles and unexamined attitudes that have tangible effects on women's employment, even if those effects are only

remotely connected to unconstitutional discrimination:

Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic

responsibilities for men. Because employers continued to regard the family as the woman's domain, they often

denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing

stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of

primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and

their value as employees. Those [*pg 665] perceptions, in turn, Congress reasoned, lead to subtle discrimination

that may be difficult to detect on a case-by-case basis.144

It is not clear how the Court's "subtle discrimination" is related to intentional discrimination; "subtle" is not a

word normally used to describe the overt intent to discriminate that the Court requires to establish an equal

protection violation.145 Assuming that the Court is referring to intentional discrimination, however, the line of

causation through which "stereotypes about women's domestic roles" produce this subtle discrimination is, as

the Court described it in Hibbs, remarkably long. Thus, even if intentional discrimination is the Court's ultimate

concern, Congress may address the underlying social processes that produce it rather than just punishing it after

it occurs.146

Of course, beginning with City of Boerne, the Court indicated that the congruence and proportionality test

would afford Congress greater legislative flexibility to deter or remedy violations of the most important rights:

"The appropriateness of remedial measures must be considered in light of the evil presented. Strong measures

appropriate to address one harm may be an unwarranted response to another, lesser one."147 Thus, when

Congress acts to deter or remedy violations of a right that receives heightened scrutiny, it should be able to

enact a statute that prohibits more constitutional conduct than when it acts to protect a right that receives only

rational basis review. Before Hibbs, however, the Court had not made clear how much more authority Congress

would have. The Court's discussion of gender-based stereotypes in Hibbs reveals how much more authority

Congress possesses when heightened scrutiny is implicated. The congruence and proportionality test requires

that the ultimate target of Section Five legislation be intentional discrimination. After Hibbs, however, Congress

may deter this discrimination by targeting its roots in stereotypes and unconscious attitudes.

[*pg 666]

Moreover, Hibbs strongly indicates that the remedy need not be aimed, even indirectly, at intentional

discrimination. The Court made clear that Congress prevents employers from offering no family leave at all, a

practice that would have a disparate impact on women:

[I]n light of the evidence before Congress, a statute mirroring Title VII that simply mandated gender equality in

the administration of leave benefits, would not have achieved Congress' remedial object. Such a law would

allow States to provide for no family leave at all. Where "[t]wo-thirds of the nonprofessional caregivers for

older, chronically ill, or disabled persons are working women," and state practices continue to reinforce the

stereotype of women as caregivers, such a policy would exclude far more women than men from the

workplace.148

There is no indication, in this passage, that the target of the remedy must be intentional discrimination, even via

a long causal chain. If Congress perceives that failure to provide family leave will disproportionately affect

female employees, it may provide a remedy.

Thus, Hibbs authorizes Congress to target either the deep roots of intentional discrimination or practices with a

disparate impact. Under either reading, Hibbs announces a remarkably expansive congruence and

proportionality standard that has great significance for Title VII's disparate impact theory. Disparate impact

aims at effects and is agnostic about the motivations behind them.149 Thus, under a more cramped congruence

and proportionality analysis, this lack of concern on intent would be a significant shortcoming.150 Under the

more expansive analysis outlined in Hibbs, however, legislation aimed at protecting a right that receives

heightened scrutiny need not directly target unconstitutional conduct. Just as the FMLA's family-leave provision

was not, on its face, concerned with remedying intentional (gender-based discriminatory) conduct, but rather

targeted conduct far down the line of causation, Title VII's disparate impact provision need not aim at

intentional discrimination to be a congruent and proportional remedy. Although surely there must be some

limits to the attenuation of the connection, Hibbs shows that these limits will not be strict: so long as the theory

targets practices [*pg 667] that are connected in some way to intentional discrimination, the congruence-and-

proportionality requirement will be satisfied.151

So even if the Hibbs congruence-and-proportionality requirement mandates conceptualizing disparate impact in

a way that ties it to intentional discrimination, the connection can be so loose that it would not alter how the

theory functions in practice. Hibbs thus provides a better rationale for disparate impact than either the Eleventh

or Eighth Circuit could offer under the reasoning of the Supreme Court's earlier Section Five decisions.152 The

Eleventh Circuit's conception of disparate impact as a remedy for intentional discrimination that would be

difficult for plaintiffs to prove is far more limiting. Tying disparate impact so tightly to intentional

discrimination risks limiting disparate impact's usefulness in challenging practices that impose barriers through

indifference, thoughtlessness, and unconscious stereotypes. Under the Eleventh Circuit's approach, courts may

feel compelled to dismiss disparate impact claims that do not bear the "scent" of covert intentional

discrimination.153 In contrast, the Eighth Circuit's conceptualization of [*pg 668] disparate impact as the

"functional equivalent" of intentional discrimination is less precise and, thus, likely would narrow the disparate

impact theory less dramatically than would the Eleventh Circuit's approach. It faces a similar problem, however,

in that it produces an expectation that disparate impact claims will be similar to claims of intentional

discrimination. The disparate impact theory, instead, has always permitted challenges so long as a practice

produces a disparate impact, even when an employer's motivations appear entirely innocent.154 A theory

targeting practices that are the functional equivalent of intentional discrimination is not as broad or as generally

applicable as a theory that targets all disproportionately adverse effects.

B. The Disparate Impact Remedy Compared with the FMLA and Title II of

the ADA

In addition to falling within the broad language of the Hibbs opinion, Title VII's disparate impact theory is

similar, in three key respects, to the remedies upheld in Hibbs and Lane. First, like the FMLA's family-leave

provision and the reasonable accommodation mandated by Title II of the ADA, disparate impact does not

punish intentional discrimination, but rather imposes a duty on employers to ensure that protected groups are

not disproportionately burdened by facially neutral policies. The Supreme Court explained in Hibbs that the

family-leave requirement protected women from being harmed disproportionately by the absence of employer-

provided leave policies.155 Congress was justified in imposing a requirement that employers offer their

employees twelve weeks of leave as prophylaxis for the disparate impact that neutral leave policies would have

on female employees. Disparate impact liability would target the same adverse effects as the FMLA's leave

policy, but in a less-intrusive way -- by prohibiting the discriminatory policies directly rather than by setting a

standard that overrides them. If Congress may take the more-intrusive step of imposing a mandatory leave

policy to guard against leave policies that would have a disparate impact on women, [*pg 669] it should be able

to take the less-intrusive step of imposing liability on employers who employ such policies.

Moreover, disparate impact is closely aligned with the reasonable accommodation upheld in Lane. Both

remedies impose a duty over-and-above the baseline duty to refrain from intentionally discriminating. Title II of

the ADA requires governments to take affirmative steps to ease disabled persons' access to courthouses; it does

not inquire whether governments refrain from taking such steps out of discriminatory animus toward the

disabled. Title II is thus agnostic toward questions of intent and focuses, instead, on effects in much the same

way as disparate impact. Indeed, the Court in Lane acknowledged that the failure to accommodate and the

maintenance of policies that have a disparate impact are closely related problems: "[F]ailure to accommodate

persons with disabilities will often have the same practical effect as outright exclusion."156

Second, like both the FMLA's family-leave provision and Title II of the ADA's reasonable-accommodation

requirement, disparate impact under Title VII displays legislative crafting that limits the burden it imposes. In

Hibbs, the Court noted with approval a number of statutory limitations on the FMLA's reach. These included

the limited definition of covered employees; the requirement that employees give advance notice of foreseeable

leave requests; the requirement that a health-care provider certify the need for leave; and the twelve-week limit

on leave, which was a "middle ground" between the needs of employees and employers.157 Moreover, the

damages available were "strictly defined and measured by actual monetary losses."158 Similarly, in Lane, the

Court emphasized that "[t]he remedy Congress chose is nevertheless a limited one."159 Reasonable

accommodation "would not fundamentally alter the nature of the service provided," and governments are not

required to make accommodations that "would impose an undue financial or administrative burden."160

The disparate impact theory, as codified, incorporates the judicially developed tripartite structure of proof,

including the business necessity defense, as well as the requirement that plaintiffs [*pg 670] identify the

specific employment practice responsible for the disparate impact.161 These limitations ensure that disparate

impact liability is only imposed upon employers who refuse to abandon employment practices that clearly

burden women or racial or ethnic minorities disproportionately. Moreover, disparate impact plaintiffs may not

recover compensatory or punitive damages, but instead are limited to backpay, attorney's fees, and injunctive

relief.162 This is a further indication that the theory is tailored to accomplish important ends without imposing an

excessive burden on employers, who may not have been aware initially of their policies' discriminatory effects.

Finally, disparate impact, like the remedies in Hibbs and Lane, responds to the failure of prior efforts. The Court

emphasized in both cases that more extensive remedies are justified by the failure of more limited previous

efforts. In Hibbs, it noted that Congress had enacted the FMLA in the face of evidence that Title VII and the

Pregnancy Disability Act had failed to address workplace gender discrimination fully: "Congress again

confronted a 'difficult and intractable proble[m]' where previous legislative attempts had failed. Such problems

may justify added prophylactic measures in response."163 Referring to this passage, the Court noted in Lane that

Congress had enacted the ADA in the face of "considerable evidence of the shortcomings of previous legislative

responses."164 Title VII's disparate impact theory, like the FMLA and Title II of the ADA, is an "added

prophylactic measure" that was created in response to the failures of prior efforts. The Court itself created the

remedy in response to evidence that employment practices imposing significant barriers to workplace equality

were escaping the reach of Title VII's disparate treatment theory.165 In sum, the disparate impact theory is

similar in nature, scope, and purpose to the remedies upheld in Hibbs and Lane.’

C. The Value of a Broadly Defined Disparate Impact Theory

Although the Eighth and Eleventh Circuits were able to find a doctrinal basis for upholding the disparate impact

theory before [*pg 671] Hibbs and Lane, they did so by defining the theory in terms of intentional

discrimination; the Eleventh Circuit's approach, in particular, seemed to reduce the theory to an "evidentiary

dragnet" for detecting hidden intentional discrimination.166 As shown by the three decades of Supreme Court

precedent dealing with disparate impact claims, the theory can only provide an effective remedy if it is broadly

defined. The disparate impact theory is broad enough to reach a range of employment practices that, although

outside the scope of the disparate treatment theory, nevertheless impose substantial barriers to equal

employment opportunity. In particular, disparate impact has been used to target arbitrary employment practices

that impose barriers to equal opportunity and practices that result from unconscious bias. Only if disparate

impact has the same broad reach under Congress's Section Five Power will the theory be a viable remedy for

state employees. Moreover, a narrow disparate impact theory, conceived of solely as a remedy for intentional

discrimination, would be unworkable in practice.

From its inception, the disparate impact theory has been concerned with "artificial, arbitrary, and unnecessary

barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other

impermissible classification."167 Since Griggs, the theory has been important in cases involving arbitrary

barriers in which probing for discriminatory animus would be neither practical nor meaningful. For example, in

Dothard v. Rawlinson,168 a female applicant for a prison-guard position used the disparate impact theory to

challenge statutory height and weight requirements [*pg 672] that excluded many women, but almost no men.169

Because it was a disparate impact claim, the Court did not have to attempt to discern the motives of the

Alabama legislators who had enacted these requirements. Not only would such an inquiry have been difficult,

but it also would not have contributed much. In the face of evidence that the height and weight requirements

would preclude more than 40 percent of women, but less than one percent of men, from serving as prison

guards,170 it matters little whether the legislature intended to exclude women or simply acted without

considering the disproportionate burden these requirements would impose. What the plaintiff in Dothard

sought, and won, was a new policy that would measure the characteristics that prison guards must possess

without unnecessarily screening out qualified female applicants.171 Because the purpose of the litigation was to

remove barriers to equal employment rather than to punish the employer for discriminating, there was little

reason to require proof that the state had acted out of discriminatory motives once the existence of the barriers

was established.172 This salutary change in policy was only possible because the disparate impact theory is not

tethered to considerations of intent and can reach practices that impose arbitrary, rather than intentional,

barriers.

A broad disparate impact theory is also important because it can reach practices that, although imposing

significant barriers to workplace equality, reflect unconscious bias rather than volitional discriminatory animus

(and thus fall outside the ambit of disparate treatment). In Watson v. Fort Worth Bank & Trust,173 an African-

[*pg 673] American bank employee was repeatedly passed over for supervisory positions in favor of white

employees;174 the bank had never developed formal criteria for evaluating candidates for promotion, relying

instead upon supervisors' subjective assessments.175 Because the bank had been able to offer nondiscriminatory

reasons for each of its promotion decisions, the lower courts had dismissed the plaintiff's Title VII disparate

treatment claims.176 The Supreme Court held, however, that the plaintiff could proceed under the disparate

impact theory. Although subjective employment practices are not themselves objectionable, the Court

explained, they may violate Title VII if their effects are "functionally equivalent to intentional

discrimination."177 Even if supervisors are not motivated by discriminatory animus in selecting candidates for

promotion, unstructured subjective hiring practices may permit unconscious biases to distort the supervisors'

assessments:

[E]ven if one assumed that [intentional] discrimination can be adequately policed through disparate treatment

analysis, the problem of subconscious stereotypes and prejudices would remain. In this case, for example,

petitioner was apparently told at one point that the teller position was a big responsibility with "a lot of

money . . . for blacks to have to count." Such remarks may not prove discriminatory intent, but they do suggest

a lingering form of the problem that Title VII was enacted to combat. If an employer's undisciplined system of

subjective decisionmaking has precisely the same effects as a system pervaded by impermissible intentional

discrimination, it is difficult to see why Title VII's proscription against discriminatory actions should not

apply.178

The Court's explicit recognition of the role of unconscious bias in employment decisions reveals the inadequacy

of conceptions of disparate impact that view it as merely a remedy for covert intentional discrimination. As the

Court described it, what was at work in Watson was not intentional discrimination, covert or otherwise. Rather,

it was a neutral practice that nonetheless worked to exclude African Americans disproportionately from the

supervisory ranks because it allowed unconscious biases to operate [*pg 674] unchecked. Thus, if courts had to

limit disparate impact to cases of covert discrimination, cases like Watson might not present valid Title VII

claims.

In addition to these conceptual reasons for a broad disparate impact theory, there are also practical reasons not

to conceive of disparate impact as merely a remedy for covert intentional discrimination. Although states may

raise Eleventh Amendment defenses early, often it will not be clear until well into the litigation process whether

a facially neutral practice is the product of discriminatory animus. In Watson, for example, the district court

conducted a full trial on the plaintiff's disparate treatment claims before concluding that no intentional

discrimination had occurred.179 Thus, courts hearing disparate impact cases against state employers would have

to defer ruling on Eleventh Amendment defenses until after hearing sufficient evidence from which to

determine whether covert intentional discrimination was at work. It would be an enormous waste of judicial

resources, and would be unfair to litigants, to let cases proceed to discovery, or even to trial, before deciding

whether they should even have been brought in the first place. Although the Eleventh Circuit made clear that it

would not require case-by-case findings of intent,180 there is no reason to suppose that other courts adopting its

approach would not demand proof of intent in each individual case.181

Courts also would have to make findings regarding intent on the basis of evidence ill-suited to the inquiry. The

structure of proof in disparate impact cases aims to determine the effects of employment practices on protected

groups and to assess whether these practices [*pg 675] are justified.182 It does not offer the opportunity to delve

into employers' motives. In the course of hearing evidence about effects and justifications, however, courts

hearing disparate impact claims would have to make findings as to whether a covert intent to discriminate was

at work. The disparate treatment theory is better suited to this inquiry. Disparate impact's structure of proof

should be reserved for the inquiry it was designed to address -- assessing whether neutral employment practices

are justified -- and should not be used to attempt to root out intentional discrimination.

CONCLUSIONThe Supreme Court's decisions in Hibbs and Lane give flesh to the suggestion in earlier cases that Congress has

the power to respond in meaningful ways to racial, gender, and national-origin discrimination by state

governments. In announcing a more nuanced and flexible standard for reviewing the legislative record and

describing a more expansive view of Congress's power to legislate under Section Five of the Fourteenth

Amendment, these cases put Title VII's disparate impact theory on much more solid doctrinal ground. It is now

clear that the disparate impact theory can reach a wide range of state-government employment practices that,

although constitutional, pose barriers to equal employment opportunity.

The disparate impact theory is important both practically and symbolically. Although disparate impact cases are

relatively infrequent,183 the theory remains an important tool with which to challenge arbitrary barriers to equal

employment opportunity.184 It also embodies society's commitment to opening workplaces to all persons,

regardless of race, ethnicity, or gender. For some time, it appeared that the Supreme Court would elevate the

"dignity" of the states above Congress's power to apply this core equal protection principle in state government

workplaces. The Court has finally [*pg 676] reaffirmed in Hibbs and Lane, however, that it shares at least this

basic commitment to equality.

FOOTNOTES2. 1 CHARLES A. SULLIVAN ET AL., EMPLOYMENT DISCRIMINATION: LAW AND PRACTICE §

4.01, at 235 (3d ed. 2002). The other major theory under Title VII is disparate treatment, which requires proof

of intent to discriminate. Id.

4. Congress extended Title 7 to state & local gov. employment as part of the Equal Employment Opportunity

Act of 1972, Pub. L. No. 92-261, §701, 86 Stat. 103, 103 (codified as amended at 42 U.S.C. § 2000e (1972)).

5.See generally Erwin Chemerinsky, The Federalism Revolution, 31 N.M. L. REV. 7 (2001) (discussing the

Rehnquist Court's federalism jurisprudence, including its expansion of state sovereign immunity).

6.SULLIVAN ET AL., supra note 2, § 4.01, at 244; Robert C. Post, The Supreme Court, 2002 Term-Foreword:

Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 19-21 (2003).

7.427 U.S. 445, 456 (1976).

8.U.S. CONST. amend. XIV, §5; see, e.g., Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001)

(citing Fitzpatrick for the proposition that "the 11th Amendment, & the principle of state sovereign immunity

which it embodies, are necessarily limited by the enforcement provisions of §5 of the 14th Amendment"); Kimel

v. Fla. Bd. of Regents, 528 U.S. 62, 80 (2000) ;City of Boerne v. Flores, 521 U.S. 507, 518 (1997) (same).

15.See, e.g., Nicole E. Grodner, Note, Disparate Impact Legislation & Abrogation of the States' Sovereign

Immunity After Nevada Department of Human Resources v. Hibbs & Tennessee v. Lane, 83 TEX. L. REV.

1173, 1212-23 (2005) (arguing that Title 7’s disparate impact theory does not abrogate state sovereign

immunity after Hibbs & Lane).

16. See, e.g., Washington v. Davis, 426 U.S. 229, 239 (1976) (holding that equal protection claims require

proof of discriminatory intent).

17. The Eleventh Amendment provides, "The Judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. The Supreme Court

has held that the Amendment also applies to suits by citizens against their own states. Bd. of Trs. of the Univ. of

Ala. v. Garrett, 531 U.S. 356, 363 (2001); see id. ("The ultimate guarantee of the Eleventh Amendment is that

nonconsenting States may not be sued by private individuals in federal court.").

18.Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); see Seminole Tribe v. Florida, 517 U.S. 44, 72-73 (1996)

(holding that Congress may not abrogate state sovereign immunity pursuant to its power under the Commerce

Clause). Title VII's application to private employers is an exercise of Congress's power to regulate interstate

commerce. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 3.3, at

257-58 (2d ed. 2002).; cf. Katzenbach v. McClung, 379 U.S. 294, 304 (1964) (holding that Title II of the Civil

Rights Act of 1964, as applied to a private business, was a valid exercise of Congress's Commerce Clause

power); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 261-62 (1964) (same).

19.City of Boerne v. Flores, 521 U.S. 507, 519 (1997).

20.The Court has held that several federal antidiscrimination statutes are not valid exercises of Congress's

Section Five power. See Garrett, 531 U.S. at 374 (Title I of the ADA); Kimel v. Fla. Bd. of Regents, 528 U.S.

62, 92 (2000) (Age Discrimination in Employment Act (ADEA)); Boerne, 521 U.S. at 536 (Religious Freedom

Restoration Act (RFRA)).

21.An additional requirement is that Congress must have made unmistakably clear its intention to abrogate state

sovereign immunity. Kimel, 528 U.S. at 73. This requirement is not at issue w/ respect to Title 7, which clearly

was intended to apply to the states. Fitzpatrick, 427 U.S. at 447.

22.See infra notes 25-34 and accompanying text.

25.Garrett, 531 U.S. at 365.

26.528 U.S. 62 (2000).

28.531 U.S. 356 (2001).

30.Id. at 368; see also Kimel, 528 U.S. at 83 ("States may discriminate on the basis of age without offending the

Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest.").

31.Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 728 (2003).

32.Tennessee v. Lane, 541 U.S. 509, 522-23 (2004).

33.See, e.g., United States v. Virginia, 518 U.S. 515, 531 (1996) ("Parties who seek to defend gender-based

government action must demonstrate an 'exceedingly persuasive justification' for that action.").

34.Garrett, 531 U.S. at 368.

36.Id. Similarly, the Court discounted evidence of unconstitutional state conduct in public accommodations,

which it considered irrelevant bc Title I specifically addresses disability discrim. in employment. Id. at 371 n.7.

37.See id. at 370 (noting that Congress had found, in enacting the ADA, that 43 million Americans have one or

more disabilities and that in 1990 state governments employed 4.5 million people, and observing that "[i]t is

telling, we think, that given these large numbers, Congress assembled only such minimal evidence of

unconstitutional state discrimination in employment against the disabled").

39.See 528 U.S. 62, 91 (2000) ("A review of the ADEA's legislative record as a whole . . . reveals that Congress

had virtually no reason to believe that state and local governments were unconstitutionally discriminating

against their employees on the basis of age.").

40.521 U.S. 507, 519 (1997).

41.Id. at 530 ("RFRA's legislative record lacks examples of modern instances of generally applicable laws

passed because of religious bigotry.").

42.In Lane, the Court noted that the legislative record supporting the FMLA in Hibbs "contained little specific

evidence of a pattern of unconstitutional discrimination on the part of the States." 541 U.S. 509, 528 n.16 (2004)

43.See Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 730-31 (2003) (attributing disparities in private-

sector leave policies to public-sector employment on the basis of evidence before Congress that public-sector

and private-sector leave policies were substantially similar).

45.Id. at 749-50 (Kennedy, J., dissenting); see also Lane, 541 U.S. at 519 ("We upheld the FMLA as a valid

exercise of Congress' § 5 power to combat unconstitutional sex discrimination, even though there was no

suggestion that the State's leave policy was adopted or applied with a discriminatory purpose.").

46.541 U.S. at 529.

47.538 U.S. at 730, 736.

48.541 U.S. at 524.

49.See Hibbs, 538 U.S. at 730 ("The long and extensive history of sex discrimination prompted us to hold that

measures that differentiate on the basis of gender warrant heightened scrutiny."). The Court had already

acknowledged the history of race and gender discrimination and, in Kimel, drawn a link between this history

and heightened scrutiny. Contrasting the heightened scrutiny shown to race and gender classifications with the

more relaxed scrutiny applied to classifications based on age, the Court in Kimel made the following

observation: "Older persons, . . . unlike those who suffer discrimination on the basis of race or gender, have not

been subjected to a 'history of purposeful unequal treatment.'" Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83

(2000) (quoting Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976)).

50.Note that this analysis formulates the right at a higher level of abstraction than authorized under Kimel

& Garrett. That is, the Court did not consider whether its jurisprudence revealed a history of gender-based

discrim. in employment. Instead, it considered gender-based discrimination generally. This less-precise analysis

is easy to criticize if one starts from the assumption that the Crt. was performing the same analysis in Hibbs as

in Garrett. This more abstracted form of analysis makes more sense, however, if, as discussed in Part IIB. infra,

the Crt. was really establishing a different form of record review for rights that receive heightened scrutiny

51.City of Boerne v. Flores, 521 U.S. 507, 520 (1997).

52.Id. In Boerne, the Court invalidated RFRA, which had mandated strict scrutiny for facially neutral laws that

substantially burdened the free exercise of religion. RFRA would have worked a dramatic change in the

protection afforded to the free exercise right and could have affected every aspect of state government

operations. Id. at 532. Thus, it was not remedial legislation because it was grossly disproportionate to the

relatively insignificant problem of facially neutral laws burdening the exercise of religion. Id.

55.Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 372-73 (2001); Kimel v. Fla. Bd. of Regents, 528

U.S. 62, 82-83 (2000).

56.528 U.S. at 86.

58.531 U.S. at 372.

59.538 U.S. at 724-25.

61.Tennessee v. Lane, 541 U.S. 509, 531-34, 532 n.20 (2004). In Lane, the respondents were paraplegics unable

to access courthouses that were not wheelchair accessible. Id. at 513-14. Respondent Lane was unable to appear

in court to face criminal charges and had to crawl up two flights of stairs. Id. at 514. Respondent Jones was a

court reporter who was unable to access a number of county courthouses, and thus she "lost both work and an

opportunity to participate in the judicial process." Id.

64.See id. ("Intent, purpose, or state of mind is crucial to . . . disparate treatment [claims].").

65.See id. at 43 ("The Supreme Court has said that disparate impact discrimination 'involve[s] employment

practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one

group than another and cannot be justified by business necessity.'" (quoting Int'l Bhd. of Teamsters v. United

States, 431 U.S. 324, 336 n.15 (1977))).

66.See id. ("Proof of discriminatory motive . . . is not required under a disparate impact theory." (quoting Int'l

Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n.15 (1977))).

68.401 U.S. 424 (1971).

69.See id. at 429-30 ("The objective of Congress in the enactment of Title 7 is plain from the language of the

statute. It was to achieve equality of employment opportunities & remove barriers that have operated in the past

to favor an identifiable group of white employees over other employees."); see also Connecticut v. Teal, 457

U.S. 440, 448 (1982) ("When an employer uses a non-job-related barrier in order to deny a minority or woman

applicant employment or promotion, & that barrier has a significant adverse effect on minorities or women, then

the applicant has been deprived of an employment opportunity 'because of . . . race, color, religion, sex, or

national origin.'" (quoting Civil Rights Act of 1964 §703(a)(2), 42 U.S.C. §2000e-2(a)(2) (2000))

70.Pub. L. No. 102-166, §703, 105 Stat. 1071, 1074-75 (codified as amended at 42 USC §2000e-2(k)(1) (2000))

71.In Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), the Court significantly weakened the disparate

impact theory. SULLIVAN ET AL., supra note 2, § 4.01, at 240-41.

72.Pub. L. No. 92-261, § 701, 86 Stat. 103, 103 (codified as amended at 42 U.S.C. § 2000e (2000)).

73.401 U.S. at 427-28.

80.See Connecticut v. Teal, 457 U.S. 440, 448 (1982) (noting the Court's conclusion in Griggs that in enacting

Title VII, Congress's primary objective was "to achieve equality of employment opportunities and remove

barriers that have operated in the past to favor an identifiable group of white employees over other employees"

(quoting Griggs, 401 U.S. at 429-30)).

83.Id. § 401, at 239. This structure of proof is now part of the statute. 42 U.S.C. §2000e-2(k) (2000)

85.Id. § 4.02, at 246-49. The exception is when "the plaintiff can prove that the elements of an employer's

selection process are incapable of separation for analysis." Id. at 246.

86.See Dothard v. Rawlinson, 433 U.S. 321, 338-39 (1977) (Rehnquist, J., concurring in the result and

concurring in part) ("[T]he defendants . . . . may endeavor to impeach the reliability of the [plaintiffs'] statistical

evidence, . . . offer rebutting evidence, or . . . disparage . . . the probative weight [that the] evidence should be

accorded.").

87.SULLIVAN ET AL., supra note 2, §4.01, at 239. Title VII does not define "job related" or "business

necessity." Id. at 242. Congress's Interpretive Memorandum to accompany the CRA of 1991 states only that

these terms retain their meaning prior to the Supreme Court's 1989 decision in Wards Cove Packing Co. v.

Atonio, 490 U.S. 642 (1989). Id. §4.03, at 285-86. In practice, courts have applied the standard with varying

degrees of stringency. Id. at 289-93. That Congress, in codifying the theory, specifically rejected the Court's

weak articulation of the standard in Wards Cove suggests that the required showing is fairly stringent. Id. at 289

91.Fitzpatrick v. Bitzer, 427 U.S. 445, 456-57 (1976).

92.The Eleventh Circuit's decision in In re Employment Discrimination Litigation Against Alabama involved

challenges to a number of Alabama's employment practices alleged to have a disparate impact on blacks. 198

F.3d 1305, 1308-09 (11th Cir. 1999). The claims the 8th Circuit considered in Okruhlik v. U. of Arkansas

included a female professor's allegation of disparate impact on the basis of sex. 255 F.3d 615, 620 (8th Cir.

2001). And the 7th Circuit in Nanda v. Board of Trustees of the University of Illinois evaluated a professor's

disparate treatment suit alleging race, sex, & national-origin discrimination. 303 F.3d 817, 819 (7th Cir. 2002).

93.198 F.3d 1305 (11th Cir. 1999).

97.255 F.3d 615 (8th Cir. 2001).

101.303 F.3d 817 (7th Cir. 2002).

102.Id. at 830-31 (quoting Varner v. Ill. State Univ., 226 F.3d 927, 936 (7th Cir. 2000)).

103.In re Employment Discrimination Litig. Against Ala., 198 F.3d 1305, 1321-23 (11th Cir. 1999).

107.Okruhlik v. Univ. of Ark., 255 F.3d 615, 626 (8th Cir. 2001) (quoting Watson v. Fort Worth Bank & Trust,

487 U.S. 977, 987, 990 (1988)).

109.Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91 (1988); see infra notes 173-178 111.U.S.

COMM'N ON CIVIL RIGHTS, FOR ALL THE PEOPLE . . . BY ALL THE PEOPLE: A REPORT ON

EQUAL OPPORTUNITY IN STATE AND LOCAL GOVERNMENT EMPLOYMENT (1969).

112.See H.R. REP. NO. 92-238, at 17-18 (1971), reprinted in SUBCOMM. ON LABOR, S. COMM. ON

LABOR AND PUBLIC WELFARE, 92D CONG., LEGISLATIVE HISTORY OF THE EQUAL

EMPLOYMENT OPPORTUNITY ACT OF 1972, at 77-78 (1972) [hereinafter LEGISLATIVE HISTORY OF

THE EQUAL EMPLOYMENT OPPORTUNITY ACT]. A second Commission report cited by Congress found

that Mexican Americans were underrepresented in law enforcement agencies in the southwestern United States.

U.S. COMM'N ON CIVIL RIGHTS, MEXICAN AMERICANS AND THE ADMINISTRATION OF

JUSTICE IN THE SOUTHWEST 78-83 (1970).

113.H.R. REP. NO. 92-238, at 17..

116.U.S. COMM'N ON CIVIL RIGHTS, supra note 111, at 61.

118.The report noted that African Americans were "noticeably absent from managerial and professional jobs"

except in a few fields, notably health and welfare. Latinos, although more successful in obtaining higher-level

positions than African Americans (who held the majority of laborer and other low-level positions), had been

"less successful than majority group members." Id. at 118-19.

119.S. REP. NO. 92-415, at 6 (1971), reprinted in LEGISLATIVE HISTORY OF THE EQUAL

EMPLOYMENT OPPORTUNITY ACT, supra note 112, at 415.

124.H.R. REP. NO. 92-238, at 4 (1971), reprinted in LEGISLATIVE HISTORY OF THE EQUAL

EMPLOYMENT OPPORTUNITY ACT, supra note 112, at 2140.

125.Id. The Committee did not introduce these "numerous studies" into the legislative record.

126.Id. at 64. The Committee noted that this discrimination "is particularly objectionable in view of the fact that

Title VII has specifically prohibited sex discrimination since its enactment in 1964." Id. at 64-65.

127.Thus, Title VII's legislative record contained less evidence regarding gender discrimination than regarding

racial and national-origin discrimination. As the Eighth Circuit noted, however, the same Congress that enacted

the EEOA also passed the ERA. See supra notes 99-102 and accompanying text. The Subcommittee on

Constitutional Amendments of the Senate Judiciary Committee held three days of hearings on the ERA in 1970,

during which it "received testimony from 42 witnesses, received 75 additional insertions of material, and

compiled a hearing record of almost 800 pages." S. REP. NO. 92-689, at 4 (1972). The full Committee

subsequently heard additional testimony. Id. In its report on the ERA, the Judiciary Committee cited examples

of state gender discrimination, including the persistence of "protective" labor laws that barred women from

performing certain tasks or holding certain positions. Id. at 9. Based upon this and other evidence, the

Committee stated that "[s]ex discrimination is clearly present even in government employment." Id. It noted that

women disproportionately occupied the lowest grades of federal civil service employment; although women

filled 62 percent of the lower four employment grades, they constituted only 2.5 percent of the highest four

grades. Id. Although the Supreme Court has never indicated whether evidence compiled for contemporaneous

legislative action can be considered in the record-review inquiry, the Eighth Circuit's decision to take note of the

legislative record of the ERA seems reasonable.

128.The Crt. connected this private-sector data to state employment by citing a "50-state survey also before

Congress [that] demonstrated '[t]he proportion & construction of leave policies available to public sector

employees differs little from those offered private sector employees.'" Nev. Dep't of Human Res. v. Hibbs, 538

U.S. 721, 730 n.3 (quoting The Parental & Medical Leave Act of 1986: Joint Hearing Before the Subcomm. on

Labor-Management Relations & the Subcomm. on Labor Stds. of the H. Comm. on Education & Labor, 99th

Cong. 33 (1986) (statement of Meryl Frank, director of the Yale Bush Center Infant Care Leave Project))

129.The Hibbs opinion on several occasions expressed deference toward, or even approval of, the inferences

Congress had drawn from the evidence before it. See id. at 734 ("Congress could reasonably conclude that such

discretionary family-leave programs would do little to combat the stereotypes about the roles of male & female

employees . . . ."); id. ("[4 states provided leave only through administrative regulations or personnel policies,

which Congress could reasonably conclude offered significantly less firm protection than a federal law.").

131.Id. at 732-33 (quoting H.R. REP. NO. 103-8, pt.2, at 10-11(1993), as reprinted in 1993 USCCAN 3, 18)

132.Id. at 732. The Court indicated that this inference was justified because Congress had heard testimony that

"[t]he lack of uniform parental and medical leave policies in the work place has created an environment where

[sex] discrimination is rampant." Id. (quoting The Parental and Medical Leave Act of 1986: Hearings Before

the Subcomm. on Children, Family, Drugs and Alcoholism of the S. Comm. on Labor and Human Resources,

100th Cong., pt. 2, at 170 (testimony of Peggy Montes, Mayor's Commission on Women's Affairs, City of

Chicago) (alteration in original)).

133.The Court had also looked to its own jurisprudence in Kimel and Garrett, but in those cases the result of

this inquiry was to confirm that Congress was attempting to provide state employees with far more protection

than the Crt. would offer them under the Equal Protection Clause. See supra notes 26-30 & accompanying text.

135.Hibbs, 538 U.S. at 729.

136.See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 373 (2001) (comparing the ADA unfavorably

to the Voting Rights Act (VRA)); City of Boerne v. Flores, 521 U.S. 507, 532-33 (1997) (comparing RFRA

unfavorably to the VRA).

137.See Hibbs, 538 U.S. at 736 ("[G]ender discrimination . . . triggers a heightened level of scrutiny. . . . [Thus]

it was easier for Congress to show a pattern of state constitutional violations.").

138.This phrase is Justice Scalia's description of the congruence and proportionality test. Tennessee v. Lane,

541 U.S. 509, 558 (2004) (Scalia, J., dissenting).

139.Cf. Holmes v. Marion County, 349 F.3d 914, 921 (7th Cir. 2003) (Easterbrook, J.) ("Although the Supreme

Court has consistently limited its review to the legislative record we nonetheless assume that, if the history were

written elsewhere for all to see, as the history of race and sex discrimination is, then the lack of a legislative

record would not matter. . . . Legislative power under § 5 depends on the state of the world, not the state of the

Congressional Record." (citation omitted)).

141.Professor Post argues that Hibbs was intended to avoid the political controversy that would have resulted

from invalidation of Title VII's abrogation of state sovereign immunity:

In the years since Boerne the Court has used its new enforcement model of Section 5 power primarily to

invalidate statutes of relatively low political salience. The nation's conviction that an essential mission of the

federal government is the prevention of racial and gender discrimination . . . . would be forcefully challenged

were the Court to hold that important dimensions of Title VII were beyond Congress's Section 5 power.

Post, supra note 6, at 22-23. Post is likely right about the political stakes. The focus in this Note, however, is on

the doctrinal incongruity of doubting, and requiring Congress to prove, that the states ever practiced racial,

gender, and national-origin discrimination.

144.Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003).

145.See Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrim. &

Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995) (explaining that disparate treatment analysis

fails to reflect accurately the psychological processes that produce most intentional discrimination)

146.In Lane, the Court seemed to reaffirm this principle: "When Congress seeks to remedy or prevent

unconstitutional discrimination, § 5 authorizes it to enact prophylactic legislation proscribing practices that are

discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause."

Tennessee v. Lane, 541 U.S. 509, 520 (2004).

147.City of Boerne v. Flores, 521 U.S. 507, 530 (1997) (citation omitted).

148.Hibbs, 538 U.S. at 738 (citation omitted) (quoting H.R. REP. NO. 103-8, pt. 1, at 24 (1993), as reprinted in

1993 U.S.C.C.A.N. 3, 18).

150.Indeed, the Court in Garrett rejected disparate impact liability as a remedy for disability discrimination. Bd.

of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 372-73 (2001).

151.There is no conflict between this expansive view of Congress's power to target conduct that is not itself

unconstitutional and the Court's rejection of disparate impact liability under the Equal Protection Clause. When

the Court rejected disparate impact liability under equal protection in Washington v. Davis, 426 U.S. 229

(1976), it recognized that the theory would continue to be available through Title 7. See id. at 239 ("We have

never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical

to the standards applicable under Title 7 . . . ."). Thus, Davis holds only that disparate impact is not authorized

by Section One of the 14th Amendment & does not address whether Congress may provide for disparate impact

liability pursuant to its Section Five power. Indeed, the very existence of the congruence & proportionality test

reveals that Section One and Section Five are not coextensive; if they were, there would be no reason to

measure how much conduct Congress may prohibit that would not be unconstitutional under Section One. See

City of Boerne, 521 U.S. at 518 ("Legislation which deters or remedies constitutional violations can fall within

the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself

unconstitutional . . . ."). Moreover, the Court was concerned in Davis that disparate impact liability could have

dramatic, unforeseen societal consequences. See 426 U.S. at 248 (concluding that the effects of recognizing a

disparate impact theory "would be far reaching & would raise serious questions about, and perhaps invalidate, a

whole range of tax, welfare, public service, regulatory, and licensing statutes" that disproportionately affect

African Americans). This concern does not arise with regard to disparate impact liability under Title 7, which

applies only in the employment context & has well-defined statutory parameters. See supra Part I.B.

152.See supra notes 103-109 and accompanying text.

153.See Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation

After Morrison & Kimel, 110 YALE L.J. 441, 452 (2000) ("If the conclusion of the 11th Circuit were taken

seriously, it would suggest a fundamental reworking of an important area of Title 7 jurisprudence."). Professor

Jolls, however, argues that understanding disparate impact as a remedy for covert discrimination is compatible

with a "robust conception" of the theory. Christine Jolls, Antidiscrimination and Accommodation, 115 HARV.

L. REV. 642, 675 (2001).

156.Tennessee v. Lane, 541 U.S. 509, 531 (2004).

157.Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 738-39 (2003).

159.Lane, 541 U.S. at 531.

161.42 U.S.C. § 2000e-2(k)(1)(A)(i) (2000); see supra notes 83-90 and accompanying text.

163.Hibbs, 538 U.S. at 737 (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88 (2000) (alteration in

original) (citations omitted)).

164.Lane, 541 U.S. at 531.

165.See supra notes 73-79 and accompanying text.

166.See Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 HARV. L. REV. 493,

518 (2003) ("[T]here has long been a dispute over whether disparate impact doctrine is an evidentiary dragnet

designed to discover hidden instances of intentional discrimination or a more aggressive attempt to dismantle

racial hierarchies regardless of whether anything like intentional discrimination is present."); supra Part I.C.

167.Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (emphasis added). The Court subsequently reaffirmed

this conception of the theory in Connecticut v. Teal. See 457 U.S. 440, 451 (1982) ("Title VII strives to achieve

equality of opportunity by rooting out 'artificial, arbitrary, and unnecessary' employer-created barriers to

professional development that have a discriminatory impact upon individuals."). This is not to say, however,

that either the Court or Congress has ever settled upon a single conception of the theory. See SULLIVAN ET

AL., supra note 2, § 4.01, at 243 (noting that the "disparate impact theory remains a complicated and confusing

doctrine"). Nevertheless, the conception of disparate impact as a means of achieving equal employment

opportunity is a prominent one that is traceable to the theory's origins in Griggs.

168.433 U.S. 321 (1977).

169.Id. at 323-24, 329-30 & n.12. The 5’2’’ height requirement would have excluded 33.29 % of the state's

female population but only 2.35 % of men. Id. Similarly, the 120lbs weight requirement would have prevented

22.29 % of women, but only 3.63 % of men, from working as guards. Id.

170.The 2 stds., when combined, would have excluded 41.13% of women in the state but < 1% of men. Id.

171.For ex., the Court held that a test that more directly measures strength would satisfy Title VII. Id. at 332.

172.One of the Court's misgivings about disparate impact seems to be that it "would result in employers being

potentially liable for 'the myriad of innocent causes that may lead to statistical imbalances in the composition of

their work forces.'" Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989) (quoting Watson v. Fort

Worth Bank & Trust, 487 U.S. 977, 992 (1988) (plurality opinion)). The urge to link disparate impact to

intentional discrimination may reflect the Court's concern that disparate impact should not punish "innocent"

employers. See supra note 162 and accompanying text.

173.487 U.S. 977 (1988).

180.In re Employment Discrimination Litig. Against Ala., 198 F.3d 1305, 1322 (11th Cir. 1999).

181.An alternate reading of the Eleventh Circuit's conception of disparate impact is that the court did not

envision a case-by-case assessment of whether facially neutral practices reflect covert intent to discriminate.

Rather, the court may have been suggesting that because some facially neutral practices that disproportionately

burden protected groups are undoubtedly the product of discriminatory animus, and because it would be

difficult in practice to identify these cases, the disparate impact theory should be available in all cases. This

reading suggests a much broader conception of the theory. Because it permits disparate impact liability for

many facially neutral practices that are not actually the product of intentional discrimination, it is a far broader

prophylactic ban than one that only ferrets out the intentional discrimination lurking behind apparently neutral

practices. Understood in this way, the Eleventh Circuit's conception may, therefore, exceed the narrow

definition of Congress's Section Five power outlined in Garrett. Of course, it would fit comfortably within the

Section Five power as conceived after Hibbs & Lane.

182.See supra notes 83-90 and accompanying text.

183.See Krieger, supra note 145, at 1162 n.3 (noting that far more disparate treatment claims than disparate

impact claims are brought each year).

184.See Elaine W. Shoben, Disparate Impact Theory in Employment Discrimination: What's Griggs Still Good

For? What Not?, 42 BRANDEIS L.J. 597, 597, 600 (2004) (noting that "disparate impact litigation is not

making a major impact in this new century" but arguing that "perhaps [the] most important[] reason that

disparate impact litigation has been languishing is that its potential is not often appreciated by the practicing

bar").

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