The Disparate Impact Theory

" In Griggs, the court give tongue to that the "touchstone" for this rebuttal is "business necessity;" this voiceicular barrier has usually been interpreted as requiring a exercise which is intimately tailored to the physical exertion goal of the defendant.

Before Wards Cove many national courts were in disagreement as to the plaintiffs' initial burden of substantiation in establishing a star(predicate) facie case. Specifically, must the plaintiff come upon the specific get along which caused the disparate impact ( examineing the causal connectedness between the practice and the impact) or may the plaintiff exactly figure that an mental unsoundness has occurred? This particular problem was non address by the Court in Griggs; indeed, in Griggs the plaintiff set the particular employment requirements, a high school diploma and a general intelligence test, while the court famous the causal connection between the requirements and the impact on minority applicants. The Supreme Court cases following Griggs did not deal with this irresolution either since the plaintiffs in all of the cases identified the employment criteria and presented point of causal connection. In Watson v. Fort Worth assert and Trust, the pull through case before Wards Cove, the Court stated that plaintiffs must mark the specific employment practice and present evidence that this practice caused the impact upon minorities; this statement, however, was dicta, as was all of the opinion concerning disp

Spurlock v. United Airlines, 475 F.2d 216 (10th Cir. 1972).

United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971).

Most electrical circuit Court of Appeal decisions have stated that the plaintiff indispensableness not identify any single employment practice which is alleged to have disparately impacted upon minorities; they have also been suspicious as to whether or not the plaintiff must show a causal connection between the employment practices and the imbalance complained of. The D.C. traffic circle Court of Appeals stated that since the employer will possess more(prenominal) knowledge than its employees as to how its practices affect its employees the employer should have the burden of "articulating which of its employment practices adversely affect minorities.

" On the other hand, the 3rd Circuit stated that while a plaintiff need not identify any single component of a multicomponent filling procedure he must make a "prima facie showing that the disparity would not have occurred except for the employer's hiring practices." At the opposite end of the spectrum, the 5th Circuit has required the plaintiff to both identify a specific practice and to show that the practice resulted in the imbalance.

Perry, Pamela L., Balancing Equal Employment Opportunities with Employers' authorized Discretion: The Business Necessity Response to Disparate impress Discrimination Under Title VII, 12 Industrial transaction Law Journal 1 (1990)

Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988).

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971).

In response to the Wards Cove decision Congress introduced a adjustment of Section 703 of the Civil Rights Act of 1964 during the summer of 1991 as part of the new Civil Rights Act, signed into law in October of 1991. The legislative history to this Act explains in very precise impairment how the courts are to interpret this statute, explicitly stating that the statute is intended to bring down Wards Cove and restore the interpretation of the Griggs
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