Contributory Disparate Impacts in Employment Discrimination Law

ABSTRACT An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants--upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, I propose that when plaintiffs contribute to a disparity in this way, the employer should not be liable. I demonstrate that the "lack of effort" defense is consistent with the text of Title VII and the case law, which has largely ignored this issue. Finally, I show that my proposal is supported by both the theoretical rationales underlying disparate impact and a consequentialist analysis. TABLE OF CONTENTS INTRODUCTION I. AN OVERVIEW OF THE PROBLEM A. The Lanning Problem B. Generalizing the Example: The Breadth of the Problem II. FITTING A DUTY TO TRAIN INTO THE LAW OF DISPARATE IMPACT A. The Statutory Bases for a Reasonable Efforts Defense 1. Integrating a Failure To Train Defense with Current Defenses to a Prima Facie Case of Disparate Impact 2. Statutory Bases for a Failure To Train Defense a. [section] 703(k)(1)(A)(i) and Causation b. [section] 703(k)(1)(B)(ii) and Job Relatedness c. [section] 706(g) and the Duty To Mitigate B. The Case Law 1. Failure To Train as a Defense to Liability 2. No Disparate Impact for Easily Mutable Characteristics 3. No Plaintiff Contribution to Disparate Impacts III. THEORETICAL FOUNDATIONS FOR DISPARATE IMPACT AND THE TWO-PARTY PROBLEM A. Proxy for Motive B. Group Rights/Distributive Justice C. Remedying Past Discrimination IV. AN ECONOMIC ANALYSIS OF DISPARATE IMPACT LIABILITY WITH TWO-PARTY CAUSATION A. The Effects of Disparate Impact Liability on Effort by Applicants 1. Ex Ante Moral Hazard 2. Ex Post Moral Hazard B. A Normative Analysis 1. Offsetting Benefits and the Measure of Harm 2. Non-distributional Preferences V. IMPLEMENTATION A. The Meaning of "Reasonable Efforts" 1. A Cost/Benefit Test 2. The Breadth of the Standard B. Wholesale Disparities vs. Individual Plaintiffs C. Other Contexts CONCLUSION INTRODUCTION In the first--and in some sense the paradigmatic--disparate impact case, Griggs v. Duke Power Co., (1) the Supreme Court declared that Title VII protects workers who are victims of "practices, procedures, or tests neutral on their face, and even neutral in terms of intent ... [that] operate to 'freeze' the status quo of prior discriminatory employment practices." (2) At issue in Griggs was the employer's use of a high school graduation requirement and an "intelligence" test, both of which disqualified a larger proportion of black than white applicants. (3) Left unexamined by Griggs, and by virtually all subsequent disparate impact cases, was the question of why the disparity in pass rates occurred in the first instance. (4) The neglect of this question is understandable in the context of Griggs. The reason black applicants in 1965 North Carolina had lower high school graduation rates and scored lower on "intelligence" tests than whites is obvious: it was the legacy of decades of Jim Crow, including segregated and inferior education, and hundreds of years of slavery and discrimination. Much of this legacy remains today and plays a continuing role in explaining inter-group disparities. …