From a legal perspective, the phrase “adverse impact” is likely known to employers covered by Title VII of the Civil Right Act of 1964 (CRA) or federal contractors who are covered by Executive Order 11246. In this context, “adverse impact” generally refers to substantial differences in employment decision rates between groups (U.S. Equal Employment Opportunity Commission, 1978). These “disparities” may play a role in discrimination that is alleged to be intentional or unintentional. Intentional discrimination is referred to as “disparate treatment” in the legal realm, and the idea is that protected group status was used to make employment decisions.
Where intentional discrimination is alleged, disparities may be an important part of the evidence if the allegation focuses on a class of victims. This form, called a pattern or practice of discrimination, often involves unstructured and discretionary policies or practices. It is defined in the Title VII statute, and was featured in the landmark Supreme Court cases International Teamsters v. U.S. (1977) and Hazelwood v. U.S. (1977). In many situations, anecdotal evidence of a discriminatory motive is needed in combination with statistical evidence. Most pattern and practice cases fall under Title VII and EO 11246.
Unintentional discrimination, or “disparate impact” theory, was born from landmark Supreme Court rulings in Griggs v. Duke Power (1971) and Albemarle Paper Co. v. Moody (1975). This notion was later refined and codified in the Civil Rights Act of 1991. In this scenario the central question is whether neutral selection criteria disproportionately exclude higher percentages of one group relative to another. If meaningful disparities exist, use of a selection practice with adverse impact is permissible if the employer can show that the practice is job-related and the agency or plaintiff is unable to show that there are alternative selection procedures that are equally job-related but less adverse. Most disparate impact claims fall under Title VII, and can also arise under EO 11246 and the Age Discrimination in Employment Act (ADEA). Note that there are some legal burden differences between Title VII/EO 11246 ADEA, and interested readers are referred to Gutman et al. (2010).
In 1978, the Uniform Guidelines on Employee Selection procedures (UGESP) were written to codify disparate impact standards that were initially developed in Supreme Court rulings. The first prong of a disparate impact challenge is whether the facially neutral policy or process produces adverse impact against members of EEO protected groups. More specifically, The Uniform Guidelines state:
The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines, or the provisions of section 6 of this part are satisfied.
If a selection procedure produces a substantial disparity against members of an EEO protected group, then the employer is burdened with demonstrating that the process or policy used to make those decisions is job-related or consistent with business necessity. Or, as The Uniform Guidelines describe:
For the purposes of satisfying these guidelines, users may rely upon criterion-related validity studies, content validity studies or construct validity studies, in accordance with the standards set forth in the technical standards of these guidelines, section 14 of this part.
Even in situations where the policy or process under scrutiny has been validated in accordance with The Uniform Guidelines, employers must also show that they considered adverse impact reduction as part of the process used to decide upon a particular process or policy. In the words of The Uniform Guidelines:
Where two or more selection procedures are available which serve the user’s legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have the lesser adverse impact. Accordingly, whenever a validity study is called for by these guidelines, the user should include, as a part of the validity study, an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedure which have as little adverse impact as possible, to determine the appropriateness of using or validating them in accord with these guidelines.
To view the text of the Uniform Guidelines, please follow the links provided below:
The remainder of this section summarizes (1) a list of relevant pattern and practice and disparate impact court cases related to adverse impact measurement and (2) a list of contemporary blogs summarizing recent EEO activity related to adverse impact measurement.
For a more comprehensive list of EEO court cases, please refer to the following website
associated with Art Gutman’s book EEO Law and Personnel Practices:
