We’ve seen a lot of news recently related to discrimination in employment. Today I am reading the EEOCs fact sheet on Employment Tests and Selection Procedures. I was looking for something from the EEOC that defined and explained disparate treatment and disparate impact.
In case you like to go straight to the source, I found my information on the Federal Government’s USA.gov website which has a link under the Jobs and Employment category. This is where you can find the link for Workplace Discrimination Laws that leads to the EEOC website (Equal Employment Opportunity Commission).
So what does the EEOC do? The EEOC is responsible for enforcing the following statues which are all published in Title 29 of the Code of Federal Regulations (CFR) parts 1600-1699 :
- Title VII of the Civil Rights Act of 1964 (Title VII)
- The Pregnancy Discrimination Act
- The Equal Pay Act of 1963 (EPA)
- The Age Discrimination in Employment Act of 1967 (ADEA)
- Title 1 of the Americans with Disabilities Act of 1990 (ADA)
- Sections 102 and 103 of the Civil Rights Act of 1991
- Sections 501 and 505 of the Rehabilitation Act of 1973
- The Genetic Information Nondiscrimination Act of 2008 (GINA)
LegalDicitonary.com says Disparate Impact “is a legal doctrine which declares that a policy can be considered discriminatory if it “adversely impacts” a group based on that group’s traits, such as its race, color, religion, or sex.”
According to Lisa Guerin, J.D. “Disparate treatment cases allege that an employee was treated worse than others based on a protected characteristic.”
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 makes intentional discrimination against protected classes (disparate treatment) illegal. The EEOC notes that the following are questions that need to be asked and represent issues commonly found in disparate treatment cases:
- Were people of a different race, color, religion, sex, or national origin treated differently?
- Is there any evidence of bias, such as discriminatory statements?
- What is the employer’s reason for the difference in treatment?
- Does the evidence show that the employer’s reason for the difference in treatment is untrue, and that the real reason for the different treatment is race, color, religion, sex, or national origin?
Title VII also makes testing and selection procedures illegal that end up excluding protective classes when they do not have anything to do with the needs of the job. The EEOC provides the following questions to clarify whether testing and selection procedures cause disparate impact.
- Does the employer use a particular employment practice that has a disparate impact on the basis of race, color, religion, sex, or national origin?
- Does the selection procedure have a disparate impact based on race, color, religion, sex, or national origin, and can the employer show that the selection procedure is job-related and consistent with business necessity? Can they prove that the practices are necessary to the safe and efficient performance of the job? Does the policy or practice evaluate an individual’s skills as related to the particular job in question?
- If the answer to the questions above are yes, and there is a challenge, can the applicant show that there is another way that is less discriminatory that could predict job performance but would not disproportionately exclude the protected group?
NOTE: Employers can use the Uniform Guidelines on Employee Selection Procedures (UGESP) under Title VII, 29 CFR Part 1607) guidance that will help determine if their testing and selection procedures are lawful under Title VII disparate Impact theory.
Title I of the ADA
Title I of the ADA says that employers cannot discriminate against a qualified individual on the basis of their disability (disparate treatment). It defines ‘When’ disability related inquiries (i.e., examinations) can be made, and prohibits employers from asking disability related questions until after an offer of employment is made, see 42 U.S.C. 12112 (d)(2) and 12112(d)(3).
- Do not discriminate on the basis of disability (avoid disparate treatment)
- Do not make pre-employment disability related inquiries or ask personal disability questions until a conditional job offer has been made
- only test to meet job-related requirements and ensure that all applicants in the same job category have the same exam
- Do not exclude protected groups
- Do not fail to provide accommodation unless it causes the employer an undue hardship
Title I of the ADA also stipulates that if a physical examination will be requested, it must be after an offer is made and then only if the same examination is required of all applicants applying for the same category, see 42 U.S.C. 12112 (d)(2) and 12112(d)(3). And as with Title VII stipulations, all requirements must be job-related and consistent with business necessity (to avoid disparate impact), see 42 USC 12112(b)(6). Employers must ensure that all test results are a reflection on the skills, aptitude and factors that are measured, not a documentation of impairments, 42 USC 12112(b)(7). The EEOC uses Griggs v. Duke Power Co., 401 U.S. 424 (1971) as an example.
Finally, Under Title 1, to avoid disparate impact, the employer must make reasonable accommodation unless it would impose an undue hardship on the employer. 42 USC 12112(b)(5). Reasonable accommodation is a topic in itself, so I won’t go into detail here other than to provide the note below from the Job Accommodation Network.
The 2019 JAN Accommodation Tool Kit (pg. 12) says that during pre-employment, the employer should not ask personal disability questions but might instead be able to ask whether there is a need for a reasonable accommodation (and what that might be) if one of the following applies:
The employer reasonably believes the applicant will need reasonable accommodation because of an obvious disability;
The employer reasonably believes the applicant will need reasonable accommodation because of a hidden disability that the applicant has voluntarily disclosed to the employer (42 USC 12112(d)(4)); or
An applicant has voluntarily disclosed to the employer that s/he needs reasonable accommodation to perform the job.
The ADEA protects against discrimination in many similar ways as the ADA, as the protected class involves individuals age 40 or over. This rule is clear. Don’t discriminate based on age. If it’s intentional, it’s disparate treatment. If the candidate is age 40 or over, the employer must be able to show that the selection process used was reasonable or risk having to defend itself against a disparate impact claim. The employer must be able to document what reasonable factor other than age (RFOA) was used to make the determination. The EEOC sites Smith v. City of Jackson, 544 U.S. 228 (2005) as an example.
- The ADEA also prohibits employers from using neutral tests or selection procedures that have a discriminatory impact on persons based on age (40 or older), unless the challenged employment action is based on a reasonable factor other than age. Smith v. City of Jackson, 544 U.S. 228 (2005). Thus, if a test or other selection procedure has a disparate impact based on age, the employer must show that the test or device chosen was a reasonable one.
Definitely an area to pay attention to. Check out the .mp3 of this blog as I will include a word for word reading of the EEOC’s Factsheet on Employment Tests and Selection Procedures (14 pages but great information if you are trying to stay current).
I also want to mention that the EEOC also has a Digest of Equal Employment Opportunity Law. You should check it out.
Title 29 – Labor https://www.dol.gov/general/cfr/title_29
EEOC Discrimination by Type Links:
Smith v. City of Jackson, 544 U.S. 228 (2005)