Disparate or Adverse Impact
Initially Title VII of the Civil Rights Act of 1964 forbade disparate treatment (intentional) of
individuals because of race, color, gender, age, religion, or national origin. Civil rights law has
since evolved into two types of cases of discrimination: disparate treatment and disparate
(adverse) impact. The first is where the employer intentionally discriminates (disparate treatment)
against a person who is a member of a protected class (race, color, gender, age, religion, etc.).
Disparate impact deals with the treatment of an individual, applicant or employee.
The second type of discrimination deals with groups of people.(Robinson, McClure Franklin, &
Wayland, 2002, p. 80). Disparate or adverse impact tends to be more confusing because the
employer UNINTENTIONALLY discriminates against members of a protected group through a
specific employment practice. Disparate (Adverse) Impact refers to the results of a particular
practice that adversely treat a group despite the employer's good intentions. The decision by the
United States Supreme Court in the Griggs v. Duke Power Co. case, established the disparate
impact paradigm for proving employment discrimination.
The background of the Griggs v. Duke Power Co. case: While on the surface it appeared that
every candidate experienced the same process and was measured against the same standards
(no one being given favorable treatment over someone else), a group of African Americans
employees complained that new education and testing requirements implemented by the firm had
the effect of denying African Americans at a much higher rate. Duke Power had implemented a
requirement that all employees promoted from the labor department must have completed a high
school diploma or its equivalent and have satisfactory scores on two aptitude tests: the
Wonderlich Personnel Test and the Bennett Mechanical Comprehension Test. (Robinson, et al,
2002) "Job placement was based solely on whether an applicant passed them" (Robinson, et al,
2002, p. 80).
The employees based their complaint on the fact that the census of North Carolina at the time
showed that 34 percent of the white males received a high school diploma versus only 12 percent
of the African American males (Robinson, et al, 2002). However, of those eligible to take the test
58 percent of the white males were successful versus only 6 percent of the African American
males. (Robinson, et al, 2002). Moreover, the formalized selection process standards did not
appear to have anything to do with success in the jobs applied for. Employees placed prior to the
new standard who were not tested performed satisfactorily.
The U.S. Supreme Court ruled:
"The [Civil Rights] Act proscribes not only discrimination but also practices that are fair in form.
The touchstone is business necessity. If an employment practice which operates to exclude