Griggs Vs Duke Power Disparate Impact

Disparate impact happens when an employer uses a facially neutral employment practice that has an adverse impact on members of a protected class. If the negative impact affects the protected group more harshly than the majority group, discrimination may be found. Practices that may be considered discriminatory are placement tests, aptitude tests, height and weight requirements or any other screening device that causes more than 20 percent of a protected group to fail the test. For example, 100 men and 100 women take an exam for a promotion. 90 of the women pass the test but only 45 of the men pass the test. The relevant ratio would be 45/90, or 50 percent, which would violate the 80 percent rule. Because the men did not pass at a rate of 80
percent of the women, the test is considered to have a disparate impact on men.

The plaintiff must prove, usually through statistical data, that the challenged practice has an adverse impact on a protected group. The employer must prove that the challenged practice is a business necessity. Even if the employer proves business necessity, if an alternate employment practice that does not have the same effect on the minority group is available, the employer is still guilty of disparate impact. GRIGGS v. DUKE POWER CO., 401 U.S. 424 (1971) 401 U.S. 424 is the most famous court case dealing with disparate impact. Griggs was codified into law in 1991 through the Civil Rights Act of 1991.

In Griggs v.
Duke Power Co. African American employees challenged Duke Power's policies requiring a high school diploma or passing of intelligence tests as a condition of employment in or transfer to jobs at the plant. These requirements went into effect right after the passage of Title VII. Before Title VII, all non-white employees worked in the Labor Department at a much lower pay than the lowest paid white worker did. These requirements were not directed at or intended to measure one's ability to learn to perform a particular job or category of jobs. It was a well-known fact that whites had more opportunity to finish high school in the 1960s and 1970s. White employees were grand fathered in under the new policy. The U.S. Supreme Court held that the act dictated that job requirements which have a disproportionate impact on groups protected by Title VII be shown to be job related. (Bennett-Alexander and Hartman, 101). Congress requires the removal of barriers to employment when the barriers discriminate based on racial or other impermissible classifications. If the employment practice cannot be shown to be job related then the practice is prohibited under Title
VII.

While disparate impact is usually statistical in nature, disparate treatment happens when an employer treats an employee differently because of their membership in a protected group.
Disparate treatment prohibits employers from treating applicants or employees differently because of their membership in a class protected by Title VII. The central issue is whether the employer's actions were motivated by discriminatory intent, which may be proved by either direct or circumstantial evidence. Disparate treatment is considered intentional discrimination and the employer may not say they are discriminating. The U.S. Supreme Court has a list of indicators that leave discrimination as the only explanation when every other explanation is eliminated: (1) The plaintiff must establish a prima facie case of discrimination; (2) the employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions; and (3) in order to prevail, the plaintiff must prove that the employer's stated reason is a pretext to hide discrimination. (http://www.hr-guide.com/data/G701.htm. This is called direct method - burden-shifting. In disparate treatment cases, the employer's policy is discriminatory on its face (Bennett-Alexander and Hartman, 95). McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973) is a case that shows disparate
treatment

Petitioner, McDonnell Douglas Corp. is an aerospace and aircraft manufacturer that employs over 30,000 people. Green is an African American who worked for petitioner as a mechanic from 1956 to August 28, 1964. He was laid off during a general reduction in workforce. Green was an activist during the civil rights movement. Green protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated His activist activities were considered "disruptive and illegal".

In July 1965, McDonnell Douglas publicly advertised for qualified mechanics. Green applied for re-employment but was turned down because of his earlier protests against McDonnell Douglas. Green filed with the EEOC claiming racial discrimination and involvement in the civil rights movement, in violation of the Civil Rights Act of 1964.

McDonnell Douglas did not dispute Green's qualifications and that his work performance was acceptable. Therefore, the burden shifts to the employer to prove a legitimate, nondiscriminatory reason why they would not rehire Green. McDonnell Douglas states Green's "disruptive and illegal activity" as reason. As long as Green can show evidence that white employees involved in protests against McDonnell Douglas were able to retain employment or rehired, disparate treatment is evident. Green is able to pass the

Works cited:

Bennett-Alexander, D.D. & L.P. Hartman, "Employment Law for Business." McGraw-Hill/Irwin. 4th ed. 2004. University of Phoenix website Ca. 31 July 2004 .

HR Guide to the Internet: EEO: Disparate Treatment HR Guide to the Internet: EEO: Disparate Impact Copyright © 1998, 1999 hr-guide.com All Rights Reserved. www.hr-guide.com/.../G701.htm