by Nicholas D. Palmer
In addition to banning intentionally discriminatory employment practices based on race, color, religion, sex, or national origin, Title VII of the Civil Rights Act prohibits unintentional discrimination in the form of facially neutral employment policies that have a discriminatory effect on a protected group—so-called disparate impact discrimination. In April 2013, the EEOC published a new Enforcement Guidance explaining how the use of applicants’ conviction records in hiring decisions often results in disparate impact discrimination based on race and national origin. The EEOC is aggressively pursuing litigation against employers under this theory, having filed numerous lawsuits against large companies throughout the country. Counsel assisting clients in pursuing or defending against such suits can benefit from the EEOC’s prosecution of these claims, as the cases teach important lessons in litigation strategy.
Where disparate impact exists, the Enforcement Guidance primarily focuses on an employer’s defense based on the policy being job related and consistent with business necessity. However, case law emphasizes that a plaintiff must first establish disparate impact before the job relatedness/business necessity defense comes into play. The case that perhaps best illustrates counsel’s responsibilities in handling such disparate impact claims at this first stage is EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013), aff’d 778 F.3d 463 (4th Cir. 2015). In Freeman, the court awarded summary judgment to the defendant-employer because the EEOC failed to (1) sufficiently identify the particular aspect of the employer’s background check policy being challenged; and (2) substantiate its disparate impact claims with reliable statistical support.
A plaintiff must first pinpoint the specific aspect of an employer’s use of criminal history that purportedly results in a discriminatory impact. For example, many employers treat felony and misdemeanor convictions differently in their hiring policies. Under these policies, applicants with only misdemeanor convictions are frequently eligible for hire (or eligible for hire sooner) while applicants with felony convictions are not. To challenge such a practice on a disparate impact theory, the plaintiff must point to the particular aspect of the policy that excluded her. It is insufficient to simply complain that the employer utilized criminal histories in its hiring decisions generally. . The plaintiff must also show that the challenged portion of the policy caused a discriminatory impact. Thus, it is crucial that counsel for spend time in discovery isolating the portion of the employer’s policy being challenged.
Second, a plaintiff must establish the challenged practice had a disparate impact upon her protected group. This is one area where the courts have, at least implicitly, been particularly critical of the new Enforcement Guidance. In explaining how to establish disparate impact in its Enforcement Guidance, the EEOC pointed to the fact that there are a disproportionately high number of African-Americans and Hispanics in the American criminal justice system. According to the EEOC, this fact alone necessarily “supports a finding that criminal record exclusions have a disparate impact based on race and national origin.” In this regard, the EEOC’s Enforcement Guidance attempts to burden employers with solving the statistical imbalances of the penal system.
Courts have uniformly rejected the EEOC’s approach, requiring plaintiffs to prove their disparate impact claims with statistics. This is another critical juncture in disparate impact lawsuits. Plaintiffs must provide expert statistical evidence showing the challenged employment policy has a statistically significant disparate impact upon a protected category. Importantly, a plaintiff’s statistical evidence must be reliable. If a statistical expert’s methodology is deemed unreliable by the court, the plaintiff cannot use the expert’s findings to support her claim. Therefore, plaintiff’s counsel must carefully select their experts or run the risk of having summary judgment entered against their client should the expert’s opinion and conclusions be deemed unreliable. Conversely, attorneys for employers should meticulously assess the reliability of the plaintiff’s expert as a possible avenue to success.
As the EEOC’s efforts to curb employers’ use of applicants’ conviction histories in hiring show, disparate impact claims are always complex. Attorneys must be fiercely diligent in their representation at every stage of a disparate impact claim. Failure to do so could have grievous consequences for their clients.
Nicholas D. Palmer is a Senior Assistant City Attorney in the Dallas City Attorney’s Office, Employment Litigation Division. He can be reached at firstname.lastname@example.org.