Griggs v. Duke Power

Education for African Americans Before Brown v. Board of Education

Griggs v. Duke Power The Challenged Qualifications

• HS diploma required for jobs higher than “labor” classification.

• IQ test for new hires after Title VII, or in lieu of degree for transfer to job above the labor class.

Impact of the Challenged Job Qualifications

• Diploma requirement: White pass rate 34%;black pass rate 12% (NC 1960).

• Minimum IQ score (based on HS graduate median): White pass rate 58%; black pass rate 12% (1966 study based on single employer).

Did Duke break the law by raising the bar?

Disparate Impact Theory: Does Employer Intent Matter?

• Did practice exclude dis-proportionate number of minorities?

• Was practice justified by business necessity?

• Is there an effective, less discriminatory alternative?

• Relevance of good faith?

The statistician as the star witness

Other Suspect Job Criteria Under Disparate Impact Theory

• Other educational criteria.

• Other paper & pencil tests.

• Height/weight criteria?

• Arrest or conviction records?

• “Subjective” selection?Is a footrace fair just because it’s “equal?”

The Employer’s Defense:Business Necessity

• Demonstrable correlation between job criterion and success on job.

• Content validation: compare content of test with the job.

• Criterion validation: compare test scores with job success.

• Common sense validation?

Some physical traits are demonstrably related to success.

Problem Most Fun Land employees are seasonal or part-time, aged 17-22. It was recently sued when an employee assaulted a park guest. It prevailed in that lawsuit, but discovery revealed the employee had once received deferred adjudication for assault.

Fun Land’s application asks “Have you ever been convicted of a crime? If so, explain.” It has proposed a revised application to ask: “Have you ever been convicted of a crime, or have you ever received deferred adjudication under a first offender program? If so, explain.” It wants to know if this question is lawful or could lead to other legal difficulties. How would you advise?

Affirmative Action

Fighting Race Consciousness with Race Consciousness

Is It Enough to Be Color Blind?“Affirmative Action” Necessary?

• Is it enough that institution does not intend to discriminate?

• Is it enough for institution to “prohibit” bias?

• Is it enough to use “non-discriminatory” selection procedures?

If you download the policy, have you fulfilled your obligation?

The Importance of ContextIn “Affirmative Action”

• Court-ordered remedy.

• government contractor, compelled by executive order or similar rule.

• Voluntary affirmative action plan (public & private sector).

• Ad hoc reverse discrimination.

Why is the employer hiring by numbers?

An Affirmative Action Plan:How Might It Look?

• Compare workforce statistics w/ labor market.

• Identify and end practices having disparate impact without business necessity.

• Adopt practices to improve minority access to the selection process.

• Problem of goal v. quota: Either way, how is it “enforced?”

AA By the Book

Johnson v. Transportation Agency

Should women and minorities get an inside track?

Paul Johnson versus Diane Joyce

• Diane 9 years tenure; Paul 12.

• Both have recent service as dispatcher. Paul has experience with another employer 13 years ago.

• Interview scores: Diane 73 (4th), Paul 75 (tied for 2nd).

• After “finals” for all above 70, interviewing committee recommends Paul.

• Why did the job go to Diane?

Allocation of Burdens of Proof For “Reverse” Discrimination

• Is reverse discrimination unlawful?

• A prima facie case for reverse discrimination?

• County’s LNR?

• Important consequence of treating AA as an LNR? Selecting employees:

Is it always wrong to peek?

Requirements for Lawful AA: A Plan and Its Qualifications

• AA must be according to a plan.

• The plan must be justified.

• The plan’s effect on non-minorities must be limited.

• The plan must be temporary, not permanent.

Checklist for AA

First: Did County Act Pursuant To An Affirmative Action Plan?

• Ad hoc action v. action by plan.

• Did the plan exist in fact? How was it formulated?

• Did County act according to a plan in this case?

Start out with a plan so you don’t lose your way.

Next: Is Gender Conscious AA Justified in This Case?

• Manifest imbalance in traditionally segregated job category?

• Women are 36.4% of area labor force, 0% of “skilled craft” workers.

• Must cause be employer’s discrimination? Must employer admit guilt?

Are there few women in road construction? Why?

Next, How Serious Is Plan’sEffect on Non-Favored Class?

• Does it unnecessarily trammel rights of non-minorities?

• Quotas or set asides v. goals.

• Do rejected workers have legitimate and firmly rooted expectation in the jobs?

• Effect on Johnson?Will the plan send

men packing?

Next, Is the AA Plan Permanent or Temporary?

• Why is permanency illegal?

• What if plan achieves goals?

• Is lack of express end point or date fatal?

• Implied non-permanence: Plan designed to attain balance, not maintain balance.

Is the plan written in stone?

Beyond “Remedial” AA: Other Lawful Discrimination?

• BFOQ: Age, gender, religion are “bona fide” qualifications for a job.

• Grutter: Diversity a lawful goal in student selection.

• Is diversity a lawful goal in employee selection?Grutter: Diversity by design

for its educational value

Reasonable Accommodation

Granting special treatment to avoid unintended discrimination.

Reasonable Accommodation:Is Equality an Arbitrary Barrier?

• Could religious belief or practice affect access in “religion-blind” workplace?

• Could disability affect access in “disability-blind” workplace?

• Do theories of disparate treatment or disparate impact help?An EEO workplace?

A Theory of Reasonable Accommodation

• A practice, requirement or condition is a barrier for certain religion or disability.

• Accommodation by change or exception would remove the barrier.

• Accommodation would not cause an “undue hardship.”

Is it reverse favoritism to build a ramp?

Opuku-Boateng v. State of California

Where does the plaintiff belong on Saturday?

Undue Hardship? For Religion, It’s More Than De Minimis

• Title VII’s undue hardship proviso.

• Usual meaning of “undue?”

• S. Ct.: Undue > de minimis.

• Does burden to other employees count?

• What of appearance of favoritism and resulting morale problems? Accommodating religion

requires no more than this?

Can Employer Accommodate With De Minimis Burden?

• Excuse OB; curtail operations if needed?

• Order other employees to replace OB on his scheduled Saturdays?

• Switch OB’s Saturdays for equal no. of other undesirable days.

• Solicit voluntary trades? What ifextra pay needed to induce trades?

• Must employer experiment?What if no one wants

to volunteer?

Reasonable Accommodation As An Interactive Process• Why did employer err

in Opuku-Boateng?

• A need for good faith mutual exploration of options.

• Employer selects from qualified proposals.

• Must employer experiment?

Alternatives?

Accommodating Disability:Is a Greater Burden Due?

• Preliminary issue: Can he/she perform essential functions with accommodation?

• Why a higher standard of undue hardship?

• Factors of hardship?

• Cost benefit analysis (is no. of persons benefited relevant)? Would telecommuting cause undue

hardship for an employer?

Problem“Big Al” Smith had worked for twenty years for

Ace Warehousing Company, unloading trucks and moving inventory, when he hurt his back lifting a heavy box at home. His doctor recommended that Big Al must not lift more than ten pounds for the indefinite future, but this makes it impossible for Big Al to perform his usual job. Ace Warehousing has an opening for a “shipping clerk,” and this job would not require any lifting. Big Al is qualified for the job, but another “outside” applicant is a little more qualified. Must Ace Warehousing give to the job to Big Al?

See 42 U.C.C. §12111(9)(B).

Reassignment to Vacancy As Reasonable Accommodation• “Reasonable accommodation … may include …

reassignment to a vacant position.” §12111(9)(B).

• Issue: Is inside disabled candidate entitled to preference over better qualified outside candidate?

• Prevailing judicial view: Employer must not discriminate, but need not grant preference.

• Caveat: Inside disabled candidate is entitled to preference routinely granted inside candidates.