TWO ASSIGNMENTS FOR MS PROFESSOR

The United States Supreme Court has established two legal theories for determining if laws prohibiting employment discrimination have been violated:

1. Disparate Treatment Theory: difference in treatment 2. Disparate Impact Theory: difference in effect or impact

Disparate Treatment An allegation of disparate treatment would be one where an individual claims that he or she was treated differently from other employees of a different group For example, an employee who is disciplined claims to have received a more severe penalty (different treatment) for particular misconduct tha n other employees of a different race, national origin, religion, age or sex.

If there is no difference in treatment, then there is no reasonable cause to believe that employment discrimination has occurred. ' 'ewtM!!! )

Disparate Treatment Disparate Treatment under Title VII proh ibits employers from treating applicants or employees differently because of their membership in a protected class. The central issue is whether the employer's actions were motivated by discriminatory intent.

If it is shown that disparate treatment occurred in matters such as hiring, transfer or promotion, an employer may argue that there was a bona fide occupational qualification (BFOQ) justifying the action; rather than discri minatory intent. ' ' P"I!"Y')

Disparate Treatment BFOQ Most federal, state and local civil rights agencies recognize a "Bona Fide Occupational Qualification (BFOQ)" to mean a qualification :

1. reasonably related to the satisfactory performance of the duties of the job; and 2. for which a factual basis exists for the belief that no person of an excluded group wou ld

be able to satisfactori ly perform the duties of the job with safety or efficiency

Race or color may never be a BFOQ for any job. ,, 9 •

11 ""' )

Disparate Impact The disparate impact theory focuses on whether or not the employer has a policy or qualification that appears to apply to everyone the same but in fact has a significantly greater impact on members of the complainant's protected class.

An allegation of disparate impact most often focuses on a systematic procedure such as promotion, training, or entrance examination that has an excessively negative impact on a particular group. , sn"H""' ;,

Disparate Impact This kind of claim may be made either by an individual or a group. If made on behalf of a group, it is called a class action complaint The person or agent filing a complaint on behalf of a class must also be a member of the class and personally affected by the policy or practice addressed in the complaint

Examples of practices that may be subject to a disparate impact challenge include written tests, height and weight requ irements, ed ucational requirements, and subjective procedures such as interviews. If the employer cannot show a business necessity or legitimate business objective for the policy, it may be in violation of the laws prohibiting employment discrimination. l sow•m )