Law Commons^™

Disparate Impact Theory In Employment Discrimination: What’S Griggs Still Good For? What Not?, Elaine W. Shoben

Scholarly Works

Is disparate impact a dead theory of employment discrimination? Definitely not. The theory itself has a more stable legal status than it did when the Supreme Court embraced it in its 1971 opinion Griggs v. Duke Power Co. But is it thriving in litigation? It appears to be neither thriving nor dead. It has become a relatively less vital tool, compared with theories of intentional discrimination. Despite the heroic effort of Congress to keep the theory from destruction by the Supreme Court through its express codification in 1991, disparate impact litigation is not making a major impact in this …

A Plea For Rationality And Decency: The Disparate Treatment Of Legal Writing Faculties As A Violation Of Both Equal Protection And Professional Ethics, Peter Brandon Bayer

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This article builds on the work of others by demonstrating that as a matter of academic ethics, informed by cardinal legal standards of decency, the disparate treatment and adverse terms and conditions imposed on writing professors are not simply unfair but defy the ethical aspirations of American law schools. Specifically, as the construct for analysis, this article establishes and utilizes the proposition that the discordant status of legal writing professors fails to satisfy minimal professional ethics. As a model, this article shows that it is not even minimally rational under the Equal Protection Clause of the United States Constitution, our …

Disparate Impact Discrimination: American Oddity Or Internationally Accepted Concept?, Elaine W. Shoben, Rosemary C. Hunter

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Griggs v. Duke Power Co. was a landmark United States decision because it recognized that barriers to equal employment opportunity need not be overt and that practices that appear neutral on their face may nonetheless have an unjustifiably exclusionary effect on protected groups. This American insight has not been lost on other Western legal systems in the context of their antidiscrimination statutes and opinions. This article explores the favorable reception that disparate impact analysis has had bother in other countries with similar legal heritages and in international law.

Despite the wide acceptance of disparate impact analysis in the international marketplace …

Watson V. Ft. Worth Bank And Trust: The Changing Face Of Disparate Impact, Linda H. Edwards

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Title VII of the Civil Rights Act of 1964 constitutes this country’s first serious commitment to eradicating the enormous economic disadvantages caused by hundreds of years of racial and gender-related prejudice. But there is also cause for concern. While members of once excluded groups have entered the mid-level workforce, most have not progressed to top-level positions. Perhaps not surprisingly, the elimination of barriers to mid-level employment has spotlighted the unique barriers to equal employment in top-level jobs. Title VII’s capacity to deal effectively with these barriers will be its major challenge for the next quarter-century. Its success will depend, in …

In Defense Of Disparate Impact Analysis Under Title Vii: A Reply To Dr. Cohn, Elaine W. Shoben

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The preceding article by Dr. Richard M. Cohn' concerning the use of statistics in Title VII employment discrimination cases makes three basic points. First, Cohn rejects the methods used to assess disproportionate differences between groups on tests, such as ability tests. He finds fault both with the approach of the Uniform Guidelines on Employee Selection Procedures and with the method based on finding statistical significance that I have advocated. Second, he also rejects the approach courts have adopted for evaluating the relative exclusion of groups defined by race, sex, or national origin in the employer's work force. He argues that …

Probing The Discriminatory Effects Of Employee Selection Procedures With Disparate Impact Analysis Under Title Vii, Elaine W. Shoben

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Last term the Supreme Court handed down three decisions in which it defined with some precision the proper use of statistics in Title VII cases. Those decisions filled a void that had existed since Griggs v. Duke Power Co., but they left some questions unanswered. In this article Professor Shoben discusses those decisions and addresses the issues still unresolved. She proposes a structured framework for the systematic analysis of disparate impact cases that is consistent with, yet builds upon, the three recent decisions. In addition, Professor Shoben considers whether allowing a plaintiff to establish a prima facie case with …