Title VII

1. Title VII Disparate Impact/Disparate Treatment Katie Boone

2. Disparate Impact • Unintentional discrimination • Involves employment practices which look neutral but negatively affect protected classes • According to Byars & Rue (2006) • Looks at all employment practices – hiring, promoting, training, termination, raises and benefits • According to Bennett-Alexander & Hartman (2009)

3. How Do We Know? • Disparate impact is not expressly stated in Title VII • EEOC uses the 4/5 rule – if the minority performs at less than 80% of what the majority class does, then there is a disparate impact on the minority group • Loophole – prove the practice is a legitimate business necessity • According to Bennett-Alexander & Hartman (2009)

4. Disparate Treatment • Intentional discrimination • Involves employment practices or policies that clearly discriminate • Is openly discriminatory or “discriminatory on its face” (Bennett-Alexander & Hartman, 2006) • Variance from the normal – the employee can prove they were treated differently

5. Factors • Employee must prove 4 things: • They are part of a protected class • Applied & was qualified for an open position • Was rejected for said position and the position then remained open • Employer keeps looking for qualified applicants – with the same qualifications of the rejected candidate • Can be rebutted by proving a legitimate reason for the choice.

6. Complaint Procedures • Employees lodge the complaint with the EEOC • Must be lodged within 180 days of the event • EEOC will notify the company • Mediation will be offered if the charge is appropriate • If mediation is not an option/unsuccessful, the EEOC will launch an investigation • EEOC will determine Reasonable Cause or No Reasonable Cause

7. Complain Procedures (cont) • If the EEOC cannot make a determination, there are other steps • EEOC will file in the Federal Civil Court for judicial review • Remedies may be ordered here, including back pay to the employee among other things • Jury trials may be sought • In the case of No-Cause rulings, the employee may still file a civil suit

8. Defense! • Prove there was a legitimate reason for a potential disparate treatment case • BFOQ – Bona Fide Occupational Qualification • Business necessity • Employee is falsifying information, or presenting untrue information

9. Prevent Claims • Use equal and fair employment practices • If you question it, don’t do it • Maintain proper paper trails • Applications/resumes • Performance reviews/appraisals • Training documentation • Maintain current appropriate job descriptions • Update job descriptions as they change/alter • Make employees aware of their job description

10. Prevent Claims (cont) • Treat employees consistently • Treat similar situations the same – don’t treat them differently because you like one employee more than another • Maintain updated handbooks • Utilize an arbitration program • Create an environment where employees want to come to you first • Create a committee to hear potential claims • Often just airing irritations reduces them

11. Conclusion • Disparate treatment and disparate impact are valid concerns • The employee only has to go to the EEOC to file a claim • There are legitimate reasons for certain situations • There are defenses available • Best option – be proactive! Prevent reasons for claims

12. Works cited • Byars, L. L., & Rue, L. W. (2006). Human resource management. New York: McGraw-Hill. • Bennett-Alexander, D. D., & Hartman, L. P. (2009). Employment law for business. New York: McGraw-Hill.