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What Is Disparate Impact Discrimination?

| Jan 21, 2020 | Practice Areas, Race Discrimination |

What Is Disparate Impact Discrimination?

Best Ohio Race Discrimination Attorney Answer: How can I prove race discrimination? What is the “Ban the Box” campaign? Can you ask about convictions on a job application? Can I be fired for having a criminal record? Can an employer discriminate against criminal record? Can employers ask about felony convictions? What Is Disparate Impact Discrimination?

Our employment discrimination lawyers have blogged a lot about proving employment discrimination cases under Title VII of the Civil Rights Act of 1964. (See How Do I Prove Race Discrimination Against My Boss?; Can I Take Evidence With Me When I’m Wrongfully Fired?). Sometime, proving race discrimination is clear and can be shown through direct evidence. (See Law: My Boss Called Me Nigger and Monkey. What Should I do?; Can My Job Give In To Patients’ No Blacks Demands; Can I Sue My Employer If My Boss Calls Me A Lazy Stupid African?). As horrible as these examples of race discrimination claims are, at least the bosses, managers and supervisors were honest about being discriminatory against people of color. Indeed, as horrible as these overt racist comments are, some companies try to pretend that they are not being racist or try and cover up there racially motivated decisions by hiding them behind what they claim are racially neutral rules or policies. And that brings us to today’s topic – What is disparate impact discrimination?

The United States Supreme Court addressed disparate impact discrimination in its landmark decision, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In Griggs, the Supreme Court held that Title VII of the Civil Rights Act of 1964 “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” In Griggs, the United States Supreme Court dealt with employer requirements that employees have high school diplomas and pass intelligence tests as a condition of employment in or transfer to certain jobs. Although the practice appeared neutral on its face, its effect was to freeze the status quo such that African–American employees were disqualified at a higher rate while the requirements had no real relationship to successful job performance. The Court struck down such practice, holding that any tests used must “measure the person for the job and not the person in the abstract.”

Stated another way, disparate impact cases “involve 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.” Lyon v. Ohio Educ. Ass’n, 53 F.3d 135, 138 (6th Cir.1995) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). In order to make a case for disparate impact employment discrimination, an employee must: (1) identify a specific employment practice to be challenged; and (2) show through relevant statistical analysis that the challenged practice has an adverse impact on a protected group. See Grant v. Metro. Gov’t of Nashville & Davidson Cty., 446 Fed.Appx. 737, 740 (6th Cir.2011). While we are discussing race discrimination in this blog, remember that Title VII also protects employees against discrimination based on religion, gender/sex, national origin, age, and disability.

If the employee can show both these elements, then the employer must show through evidence that the protocol or rule in question has “a manifest relationship to the employment”—the so-called “business justification.” Griggs, 401 U.S. at 432, 91 S.Ct. 849. If the employer can do that, the burden shifts back to the employee, who then must prove that other tests, rules or selection protocols would serve the employer’s interest without creating the undesirable discriminatory effect. See Isabel v. City of Memphis, 404 F.3d 404 at 411 (6th Cir.2005). “An employer cannot be held liable for disparate impact if a legitimate business policy results in workforce disparities.” Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 579 (6th Cir.2004).

With that in mind, let’s consider the nationwide “Ban the Box” campaign. I am sure some of you are familiar with the Ban the Box initiative, but for those of you who aren’t let our employment lawyers introduce you. The Ban the Box initiative is a nationwide campaign started by multiple civil rights groups in the United States. These civil rights groups have created the Ban the Box campaign with the aim of removing the checkbox on many job applications that asks if the job applicant has a criminal record. According to bantheboxcampaign.org, the campaign was started: after a series of Peace and Justice, Community Summits identified job and housing discrimination as huge barriers to our successfully returning to our communities after jail or prison. The campaign challenges the stereotypes of people with conviction histories by asking employers to choose their best candidates based on job skills and qualifications, not past convictions. Since 1 in 4 adults in the U.S. has a conviction history, the impact of this discrimination is widespread and affects other aspects of life in addition to employment opportunity- known as Disparate Impact discrimination.

What Is Disparate Impact Discrimination?

The Ban the Box movement closely mirrors the stance taken by the Equal Employment Opportunity Commission (“EEOC”) regarding the consideration of criminal history in the application process. The EEOC’s guidance advises employers to avoid blanket exclusions of potential employees who have been convicted of crimes. Instead, the EEOC encourages employers to use individualized assessments for each applicant and to look at whether an employer’s hiring policies regarding criminal history are job-related and consistent with the type of job the potential employee is applying for. (See Top Employment Law Attorney: Do Not File With The EEOC Without Doing This FirstFile With The EEOC Or Get A Lawyer? Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; and Should I File With The EEOC On My Own? Call The Right Attorney).

There must be something in that Rocky Mountain air in Colorado because lately, they have been at the forefront of progressive legislation. One new legislative measure of particular interest to employment attorneys is the brand new Colorado Chance to Compete Act (HB 19-1025). Legislation, such as the Colorado Chance to Compete Act, is right in line with the Ban the Box campaign and the EEOC’s guidance. The new Colorado Legislation prohibits an employer from; advertising that a person with a criminal background cannot apply for an open position, having a statement in an application for employment that a person with a criminal history may not apply for the open position, or asking about an applicant’s criminal background on an application for employment or they risk partaking in Disparate Impact discrimination.

What makes Colorado’s legislation so special is that it applies to both public and private employers. To date, 35 states have banned the box for public employers. These states include Arizona (2017), California (2017, 2013, 2010), Colorado (2012), Connecticut (2016, 2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Indiana (2017), Kansas (2018), Kentucky (2017), Louisiana (2016), Maine (2019), Maryland (2013), Massachusetts (2010), Michigan (2018), Minnesota (2013, 2009), Missouri (2016), Nebraska (2014), Nevada (2017), New Jersey (2014), New Mexico (2010, 2019), New York (2015), North Dakota (2019), Ohio (2015), Oklahoma (2016), Oregon (2015), Pennsylvania (2017), Rhode Island (2013), Tennessee (2016), Utah (2017), Vermont (2016, 2015), Virginia (2015), Washington (2018), and Wisconsin (2016).

While only 13 states have banned the box for both public and private employers. These states include; California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico,  Oregon, Rhode Island, Vermont, and Washington.

You may have noticed that Ohio is one of the 35 states which have passed Ban the Box legislation for public employers. In December 2015, Governor Kasich signed House Bill 56 into law. This bill, which became effective in 2016, prohibited public employers (which were defined as a state agency or political subdivision of the state) in Ohio from asking applicants if they have plead guilty to or been convicted of a felony. Due to the Ban the Box legislation the legislature created Section 9.73 of the Ohio Revised Code which reads, in relevant part: “(B) No public employer (as defined in the statute) shall include on any form for application for employment with the public employer any question concerning the criminal background of the applicant.”.

While Ohio’s Ban the Box law is a good start, it has quite a few shortcomings. Ohio’s version of the Ban the Box law would not necessarily prevent employers from asking potential employees about their criminal history in an interview, or later in the application process. Ohio’s Ban the Box law also does not prevent employers from conducting criminal background checks on applicants. Further, since Ohio’s legislation only applies to public employers, private employers, those not run by the state, are still free to ask about an applicant’s criminal history on job applications. So, while Ohio’s 2015 Ban the Box  legislation was a good start the state still has a long way to in order to overcome the current law’s shortcomings.

The reason we are blogging about the Ban the Box campaign as it relates to Disparate Impact discrimination today is that it touches on a very important topic we as employment lawyers fight every day, race discrimination. As we have blogged time and time again race discrimination in employment is far too common in the American workplace. (See How Much Racism Do I Have To Put Up With At Work?; My Co-workers Are Racist! What Can I Do?; Can A Job Refuse to Hire Me Based On My Switch Profile? I Need The Top Race And Gender Discrimination Attorneys In Ohio!).

Discriminating employers will often point to an employee’s criminal background in a sick attempt to justify their discriminatory conduct. It certainly doesn’t help that America disproportionately imprisons minorities. (If you don’t believe me just look at the statistics.) What this means is that when employees have to disclose their criminal history it may give an employer just the pretext they are looking for to not hire an African American or Latino applicant. Pretext essentially means the false reason, aka lie, an employer gives for not hiring an applicant. (See Employment Discrimination Question: What Is Pretext?).

In fact, when the EEOC issued their guidance in 2012 regarding an employer’s use of criminal history on applications to screen potential employees, the reason they cited for their guidance was to attempt to curb the disparate impact the use of criminal background checks had on African American and other minority applicants. What is disparate impact?

What Is Disparate Impact Discrimination?

The EEOC stated; The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII) which prohibits employment discrimination based on race, color, religion, sex, or national origin. This Enforcement Guidance is issued as part of the Commission’s efforts to eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state, and local governments.

In the last twenty years, there has been a significant increase in the number of Americans who have had contact with the criminal justice system and, concomitantly, a major increase in the number of people with criminal records in the working-age population. In 1991, only 1.8% of the adult population had served time in prison. After ten years, in 2001, the percentage rose to 2.7% (1 in 37 adults). By the end of 2007, 3.2% of all adults in the United States (1 in every 31) were under some form of correctional control involving probation, parole, prison, or jail. The Department of Justice’s Bureau of Justice Statistics (DOJ/BJS) has concluded that, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes.

Arrest and incarceration rates are particularly high for African American and Hispanic men. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.

Legislation such as Colorado’s Chance to Compete Act and movements such as the Ban the Box  campaign and the EEOC’s guidance are steps in the right direction. If we remove the roadblocks to employment for minorities, we not only level the playing field, but we also destroy the potential pretext
for discriminating employers to hide behind. If you feel that an employer has used your criminal background as an excuse not to hire you because of your race, or you find yourself saying “I’m being discriminated against at work because I’m black” or “my boss harasses me because I’m African American”, or whatever race you may be, then call the right attorney. Race discrimination includes being harassed, denied employment, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call the right attorney to schedule a free and confidential consultation, you will meet with a race discrimination lawyer from The Spitz Law Firm who will help you determine the best way to pursue your legal claims. Call our office at 866-797-6040.

Disclaimer:

The materials available at the top of this race discrimination page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking: “What should I do my company won’t promote black employees”, “I’m being discriminated against because my boss is a racist”, “my boss is discriminating against me because I’m black” or “How do I find the best race discrimination lawyer near me”, your best option is to contact an Ohio attorney to obtain advice with respect to race discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.