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Burden of proof in disparate impact case
March 04, 2006 by Ross Runkel at LawMemo
Circuit court are split 3-1 on whether it is the plaintiff (employees) or defendant (employer) who has the burden of proof on the issue of the availability of a less discriminatory alternative employment practice in a disparate impact case.
The latest entry is IBEW v. Mississippi Power & Light (5th Cir 03/02/2006), holding that the burden is on the plaintiff.
Basic facts:
- The union demonstrated that the employer had an employment practice that had a disparate racial impact on African-American employees. The employment practice was the method setting cutoff scores on a validated standardized test.
- The employer demonstrated that its practice was both "job related" and "consistent with business necessity."
- Neither party made a showing that there was or was not an alternative selection device that would have a lesser racial impact and also serve the employer's legitimate interest.
The statute is part of the Civil Rights Act of 1991: 42 USC Section 2000e-2(k)(A)(ii):
An unlawful employment practice based on disparate impact is established ... only if --(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.
My view: The burden of proof is on the plaintiff.
The statute gives the plaintiff two ways to go, separated by the word "or." The plaintiff failed under subsection (i) because the employer did shoulder its burden of proving that the practice was "job related for the position in question and consistent with business necessity."
Therefore, the case moved to subsection (ii), which leaves no doubt that the burden is on the plaintiff. How could the language be more plain?
The circuit courts are split on this issue. The 3rd and 11th Circuits have held that the burden is on the plaintiff. The 8th Circuit has held that the burden is on the defendant.
Read more about this case, the circuit court split, and the possibility of this issue going to the US Supreme Court at Michael Fox's Jottings By An Employer's Lawyer.
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