Problem
Describe "disparate impact" and "disparate treatment". What are the similarities and differences between these concepts? In our text, Griggs vs. Duke Power is listed as a "disparate impact" example - do you agree with this assessment? Why or why not? include in text citations as well as references
Disparate impact is the second type of illegal discrimination. It occurs when an employment practice that does not appear to be discriminatory adversely affects individuals with a particular characteristic so that they are substantially underrepresented as a result of employment decisions that work to their disadvantage. This type of discrimination is often unintentional because identical criteria are used, but the results can differ for certain groups. For example, using a test for firefighters that requires candidates to carry a 100-pound sack down a ladder could result in more women being eliminated from selection. The same job-related test is used for all candidates, with markedly different results on the basis of sex. A recent court ruling involving the Chicago Fire Department found that a battery of physical skills tests used to hire paramedics did not reflect typical work activities, thus causing disparate impact directed at women applicants. The EEOC also filed a lawsuit against CSX Transportation claiming that the organization's use of physical ability tests caused disparate impact with women applicants.
In a landmark case on disparate impact, Griggs v. Duke Power (1971), the U.S. Supreme Court ruled that lack of intent is not sufficient for an employer to prove that a practice is lawful. The court also stated that the employer has the burden to show that a selection practice is directly job-related as a business necessity. Considering the firefighter test that women failed at a higher rate, the test is a true reflection of a job-related duty-carrying a person out of a burning building. Therefore, the test would be lawful even though women would not pass at the same rate as men. A thorough job analysis and a search for alternate selection practices are important steps when disparate impact occurs. The employer must demonstrate that there is no reasonable nondiscriminatory method available to use. Appendix E explains how disparate impact is defined under the federal government's Uniform Guidelines on Employee Selection Procedures.
Unlawful discrimination can occur in any number of employment-related decisions, including recommendations for advancement opportunities, assignments to training seminars, allocations of rewards, and selections for layoffs and terminations. Bias can take many forms (i.e., discrediting, criticizing, and excluding others), be subtle and unconscious, and harm recruiting efforts and employee well-being. Employers should analyze job requirements, keep good records, and review personnel actions to make sure that employment decisions are lawful and prevent claims of disparate treatment and disparate impact. Managers can also be taught to recognize situations that can lead to discrimination. Training can enhance diversity awareness in organizations, efforts that are discussed later in this chapter. Using blind hiring processes, unbiased job ads and descriptions, consistent screening and selection approaches, data analytics, and leadership seminars can also help.