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in employment based on race, color, national origin, religion,and sex. The paper provides a succinct overview of the seminal civil rights statute – Title VII as we differentiate the two major theories of liability– disparate treatment vs
disparate impact. Once the plaintiff employee makes out an initial case of disparate or disproportionate impact, the burden of proof and persuasion shifts to the employer to come up with a job-related and business necessity justification for the policy or practice in question. As such, this critical employer defense will be explicated and illustrated. Next, the burden shifts back to the plaintiff employee to show that there exists another alternative which would cause less of a disproportionate impact. This “alternative” aspect of the law will also be covered.The paper examines disparate impact topic such as the employer’s use of criminal background checks in hiring, credit checks, and other methods of testing and selection procedures. Next, we discuss the practical implications of thedisparate impact theory for employers and managers; and then we supply pertinent recommendations to employers and managers. The recommendations will underscore the need to establish an appropriate corporate culture, including diversityeducation and training. The objectives are to avoid civil rights liability and to create a fair and just workplace.Overall, this paper deals with the disparate impact theory pursuant to Title VII of the Civil Rights Act. However, it must be pointed out that the disparate impact theory is also applicable to claims arising under the Americans with Disabilities Act (Raytheon Co. v. Hernandez
, 2003; Harper, 2016; Travis, 2012), the Age Discrimination in Employment Act (Rudolph A. Karlo v. Pittsburg Glass Works, LLC,2017; Meacham v. Knolls Atomic Power Laboratory, 2008; Smith v. City of Jackson, 2005; Harper, 2016), and the Fair Housing Act (Ko, 2016; Sacherm Lindsey, 2010). Also, since the focus of this paper ison Title VII, federal and state constitutional issues, such as the applicability of the 14th Amendment’s Equal Protection clause that may arise in disparate impact cases involving government entities will not be addressed.2. Overview of Title VIITitle VII of the Civil Rights Act protects certain groups of employees from illegal discrimination regarding all the “terms and conditions” of employment based on the protectedcategories or characteristics of race, color, religion, national origin, and sex. Title VII, moreover, recognizes two types of legal actions by aggrieved employees against their employers: disparate treatment and disparate impact. Disparate treatment is intentional discrimination based on theprotected categories of the statute (Equal Employment Opportunity Commission, 2010a; Cavico and Mujtaba, 2014).
In a disparate treatment case, the employee is purposefully being treated differently to his or her detriment because of his or her race, etc. Consequently, evidence of a discriminatory motive against the employee is required. The employer can defend a disparate treatment case by showing