by Sara Rapport
Title VII of the Civil Rights Act of 1964 prohibits two forms of discrimination based on protected characteristics (i.e., race, color, religion, sex, or national origin). First, it bans intentional discrimination, also known as “disparate treatment.” In advancing this more common claim, an employee or a job applicant will attempt to show that the employer denied her a job or an employment benefit out of some type of discriminatory animus.
Title VII also prohibits employment practices that have a “disparate impact.” The purpose of this kind of lawsuit is to target hiring and promotional decisions that seem neutral but have a discriminatory effect. Disparate impact claims look to the consequences of an employer’s actions; disparate treatment claims look to the employer’s mind-set or motivation.
The role of disparate impact lawsuits is to uncover unconscious prejudices and disguised animus the employer may not be aware of. Such lawsuits are an important tool in eradicating discrimination from the workplace. Twenty years after the U.S. Supreme Court held that Title VII prohibits disparate impact discrimination, Congress codified that case law in the Civil Rights Act of 1991. Under that statute, an employee can establish a prima facie (basic) case by showing the employer uses a “particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” The employer can defend itself by showing that the practice is job-related and consistent with business necessity. Even then, the employee can succeed if she can prove the employer refuses to adopt an alternative practice that has less disparate impact and serves its needs.
However, a recent decision by a Rhode Island federal trial court shows an employee cannot easily launch a disparate impact case just by doing some basic number-crunching. As the court noted, “The human brain is not wired for reliable statistical intuition.” Numbers can be misleading, and not every rush of data means the workplace is pervaded by racism or even unconscious bias. To get out of the gate in a disparate impact case, the employee must make sense of the data through a statistical analysis backed by expertise. The only exception arises when the factual mosaic is so compelling that no conclusion other than bias can explain the numeric asymmetry. The data in the following case didn’t satisfy that demand, despite compelling observational testimony from employees, so the court dismissed the case. Let’s take a closer look.
Workplace permeated with suspicion and doubt
Since 2009, “Erin L.” has been employed by the Rhode Island Department of Labor and Training (DLT), where she serves as a senior employment and training interviewer at the “call center,” assisting people seeking unemployment benefits. She is a black woman with a bachelor’s degree in political science and master’s degrees in public administration and library and information science. Despite her years of service and strong educational background, she claimed that she was stymied from achieving a promotion because of two seemingly neutral practices that have a racially discriminatory impact.
First, Erin L. described how employees can catapult into management through a temporary assignment, for which there is no application process. DLT instead exercises its discretion to appoint someone it believes is a good fit for the assignment, allegedly based on experience and ability. Over a five-year period, DLT appointed at least 12 employees to temporary assignments, five of whom were able to parlay their appointments into permanent promotions to management positions. Presumably, those promotions went to employees who are not persons of color.
Second, Erin L. described how DLT afforded select employees the opportunity to gain experience and learn new skills through a noncompetitive transfer process. The specific example she pointed to was a project devoted to modernizing the state’s unemployment insurance system, including aspects of the call center. Although employees working on this special project didn’t receive increased pay, the work made them more competitive for future promotional opportunities (which did include increases in pay). Presumably, those transfers also went to employees who are not persons of color.
As a consequence, nonwhite DLT employees believe the promotional system at DLT is “fixed.” Employees and former employees submitted affidavits in support of Erin L. in which they attested that the promotional system is racist and nepotistic and denies black employees equal opportunity. One witness, a white man who had voluntarily resigned, described DLT as a “political cesspool” in which “nepotism was rampant” and “acting and temporary positions” are “created and filled with Caucasians who were selected by management.” Witnesses complained that the unfairness in the meting out of promotions breeds an atmosphere of suspicion between white and nonwhite employees at DLT. Those who have complained about the system, including Erin L., suffer retaliation, including heightened monitoring and scrutiny.
The data also show that white employees dominate in both management and on the special project. As of late 2013, 65% of the call center employees were white, but 90% of management employees, and 93% of the employees working on the special project, were white. The data had changed slightly by 2016 (after Erin L.’ complaints resulted in the promotion of three nonwhite employees other than her). By then, 69% of all call center employees were white, but 83% of management employees, and 93% of the employees working on the special project, were white.
Erin L. sued. After she amended her complaint twice and discovery (the pretrial exchange of evidence) was conducted, DLT sought dismissal of the case without a trial through the tool known as summary judgment. The district court granted its request.
Court rejects disparate impact, treatment claims
To get her case to trial, Erin L. had to show the court that DLT used a particular practice that resulted in a disparate impact based on her race. To do that, most employees offer the court a statistical analysis of the information they have collected through investigation and discovery, buttressed by expert explanation. That’s important, said the court, because it prevents incorrect inferences from the raw numbers and specifically helps to “rule out” or “substantially diminish” the possibility that an observable difference is simply due to chance.
The court found that Erin L. made no effort to show that the aggregation of whites in management and on the special project was statistically significant and was therefore unlikely to be the result of chance instead of discrimination. Moreover, she didn’t show how many nonwhite employees were eligible for promotions to management positions. Instead, she simply assumed that all nonwhite union employees had the required skill set, an assumption at odds with her claim that her own strong credentials distinguished her from coworkers and made her especially well-suited for a management position. The court rejected her disparate impact claim on this deficit alone, without getting to an equally demanding aspect of the standard that the employee must satisfy early on: that the employer’s policy or policies actually caused the statistically significant disparity.
The court also rejected Erin L.’s intentional discrimination claim because DLT offered nondiscriminatory reasons for its failure to promote her. For example, there was evidence that she had an uneven work record. A former manager attested that within two years of her start at DLT, she had an altercation with a coworker that became so heated, they had to be physically separated. In addition, she had a history of returning late from breaks, refusing to collaborate with coworkers, and posting signs in her workspace that were provocative to management. Erin L.’ retort to that unflattering portrait was to emphasize both her own credentials and qualifications and to reassert the statistical evidence.
Concluding thoughts
In April’s remembrances of Martin Luther King Jr., it’s appropriate to pause and consider that today, 50 years after his death, the work to bring full justice to our country -and our workplaces- remains unfinished. The court could not overlook the powerful deficiencies in Erin L.’s evidence, yet it did attribute those deficiencies in part to her disenchantment “by what she felt was a rigged promotional system.” We know the cycle well: An employee who perceives unfairness in the workplace may become less motivated and effective, which further undermines her chances of succeeding. In fact, the court was sufficiently “troubled by the sworn testimony” that Erin L.’s discontent was “far from idiosyncratic” that it highlighted the claims of her coworkers and warned DLT that it would be “well-served” to investigate any credible allegations that its employment practices were “shot through with nepotism and racism.”
The court’s advice applies to all employers. You would be well served to examine your own workplace. Even if the concentration of white (and cisgender) men in management is the result of a paucity of eligible nonwhite women or can simply be chalked up to chance, a workplace that is not merely diverse but diverse at all echelons is the best protection against both lawsuits and diminished morale.
To discuss this topic further with Sara, contact her directly at srapport@whelancorrente.com or 401-270-0171.