Disparate Impact/Disparate Treatment

 

What is disparate treatment?

 

Disparate treatment occurs when an employer intentionally deals with individuals differently because of their race, sex, national origin, age, or disability. 1

 

What is disparate impact?

 

Disparate impact occurs when a policy or employment practice is facially neutral but nonetheless discriminates against women because of their sex.2 Facially neutral means that a policy or practice does not make a specific reference to sex.

 

How do I file a charge for discrimination?

 

If you are a current or former state or county employee, you can file a complaint with Civil Rights Division (CRD) of the Office of Administrative hearings. The CRD is the deferral office charged with handling all claims of discrimination in employment or retaliation.3 “The Human Relations Commission in the Department of Administration shall have the authority to receive charges of discrimination from the Equal Employment Opportunity Commission … the agency shall use its good offices to effect an amicable resolution of the charges of discrimination.” 4

To file a claim, also referred to as a “charge”, you must contact the CRD by mail, telephone or in person:5
1711 New Hope Church Road
Raleigh, NC 27609
(919) 431-3036

 

The complaint shall include the following information: 6

  1. Full name, address and telephone number (work and home) of person making the complaint;
  2. Full name, address and telephone number of the agency against whom the complaint is made (the respondent);
  3. The basis of the complaint (hiring or promotion);
  4. The date the alleged discrimination occurred;
  5. The name(s) of the individual(s) hired or promoted;
  6. A statement disclosing the particulars of the employment decision;
  7. The signature of the person making the complaint; and
  8. The date the complainant signed the complaint.
If you are not a current or former state or county employee, you must file your claim with the EEOC district director within 180 days of being wrongly discharged.
See The EEOC Process for general information about filing a claim.

 

 

Does it matter when the discriminatory act occurred?

 

Yes. A charge must be filed with the CRD within 180 days of the alleged discriminatory act. State and county government employees who are covered under the State Personnel Act have 300 days to file a charge directly with the EEOC.8

 

How do I prove at trial that I was a victim of disparate treatment?

 

North Carolina does not have a state statute against disparate treatment. However, an employee can still bring a disparate treatment charge in state court. The CRD defers to Title VII when a claim is brought in state court.9 As is the case with most discrimination charges, North Carolina courts will recognize the following procedure. First, it is your responsibility to establish the elements for disparate treatment. Once established, it is the employer’s duty to present evidence that the employee was rejected, or another applicant was chosen, for a legitimate, nondiscriminatory reason.10

If the employer is able to show a legitimate reason for your treatment, the burden then shifts back to you to persuade the jury that the discrimination was intentional. You must eliminate concerns that you were fired because of performance or qualifications which two of the most common nondiscriminatory reasons for any adverse employment action.

 

What are the elements of disparate treatment in the federal courts?

 

The federal court first recognized the elements for disparate treatment in McDonnell Douglas Corp. v Green.11 There are three situations where disparate treatment is recognized: rejection in hiring, terms and condition of employment, and discriminatory discharge.

To show disparate treatment in hiring you must show that:

  1. You are a member of a protected class (i.e., a woman);
  2. You applied and were qualified for a job which the employer was seeking applicants;
  3. You were rejected, despite your qualifications; and
  4. The employer continued to solicit applicants with qualifications equal to yours.12
Disparate treatment also manifests itself in the terms and conditions of employment. To establish a claim of this sort you must show that:
  1. You are a member of a protected class (i.e., a woman);
  2. You were subjected to an adverse job action;
  3. The employer treated similarly situated employees outside your protected class more favorably; and
  4. You were qualified to do the job.13
Lastly, you can file a claim for disparate treatment if you were discharged in a discriminatory manner. The elements are established by showing:
  1. You are a member of a protected class (i.e., a woman);
  2. You were discharged;
  3. At the time you were discharged, you were performing at a level that met your employer’s legitimate expectations, and
  4. The position was filled by a similarly qualified male applicant outside your protected class (i.e., a man).

 

 

What are the elements for disparate treatment in North Carolina?

 

The elements for disparate treatment in North Carolina are the same as those set forth for federal claims.
See above for more information. 8

 

How do I prove at trial I was a victim of disparate impact?

 

North Carolina does not have a state statute regarding disparate impact so the CRD defers to Title VII when deciding a claim. The federal government first recognized discrimination based on disparate impact in Wards Cove Packing Co. v. Atonio.8

An unlawful employment practice based on disparate impact is established if the employee demonstrates that an employer uses an employment practice that results in a disparate impact upon a particular class. The burden then falls on the employer to demonstrate that the challenged practice is a legitimate business purpose related to the position in question and is consistent with business necessity. 15

 

What are the elements for disparate impact?

 

In order to establish the elements disparate impact, you must show: 8

  1. The existence of a disparity;
  2. That the disparity was caused by a specific employment device, policy or practice;
  3. That the challenged policy was not justified by business necessity; and
  4. That alternative and less discriminatory measures were available to the employer and would have served its needs as well.16

 

 

Disparate Treatment: “It Happened to Me” 17

 

Gwendolyn Gordon (Gordon) was a woman employed by the North Carolina Department of Corrections (DOC), where she applied for a promotion. Gordon, Robert Hines (Hines), and five others applied for the position. The DOC hired Hines, a black man, although Gordon was better qualified for the position. Evidence was also introduced showing that the DOC intended to fill the position with a black man.

The court found that Gordon established the elements for disparate treatment in promotion: she was a woman, she was qualified for the promotion, she was passed over for the promotion, and the person receiving the promotion was not a member of her protected class. Gordon took her case one step further and showed evidence that she was more qualified than Hines for the position: she had greater length of service and experience at the DOC, more management training, higher formal education, higher classification and pay grade, higher screening and test scores, higher performance ratings, more favorable supervisor recommendations, and greater participation on task forces and specialty projects. Lastly, she was able to introduce an email from Secretary Beck of the DOC concerning Hine’s hiring. It stated: “This is good. I am a little more comfortable in defending a Hines decision rather than a Washington decision in the event we are challenged by Gordon. Your 154 on Hines needs to give him all he is entitled to and I will take care of the rest if it becomes an issue.”

This evidence was enough to establish the elements of discrimination, which shifted the burden to the DOC to show a legitimate reason for hiring Hines instead of Gordon. Instead, the DOC attempted to show that there was conflicting evidence and to discredit Gordon’s evidence. The doctrine clearly states that once the elements are established it is up to the accused to state that the person was not promoted for a legitimate reason. The DOC did not articulate a legitimate reason for not promoting her and the court found that she was, in fact, better qualified than Hines. As a result, the court found that Gwendolyn had proven her case of “disparate treatment” against the DOC in its promotion of a man over a woman. 18

 

Disparate Impact: “It Happened to Me” 19

 

Bessie Hubbard (Bessie) was employed by North Carolina State University (NCSU) from 1985 through January 1998. On January 1, 1994, she applied for the position of Building Systems Engineer III within the Department of Administration’s (DOA) Office of State Construction (OSC). At the time, she was serving as the interim Assistant Director of the Physical Plant at NCSU. Bessie was not granted an interview and the position was ultimately filled by a man.

The facts of the case were largely undisputed. On June 15, 1994, the OSC sent the DOA Personnel Office a personnel requisition for a Building Systems Engineer III position, which explicitly requested a posting for a position “in-house.” Prior to January 1994, “in-house” positions were only advertised to DOA employees. However, in January 1994, the Secretary of the DOA issued a verbal change to the department’s advertising policy such that “in-house” positions were to be advertised to all state employees and not limited to DOA employees. Bessie was not a DOA employee and applied to the position before the application deadline.

The director of OSC, Speros Fleggas (Fleggas) and Assistant Director of OSC David Bullock (Bullock) reviewed the four applications received for the position and only interviewed two male applicants, even though Bessie also met the minimum requirements for the position.

The facts were enough to establish the elements for disparate impact. However, Bullock and Fleggas were able to show a nondiscriminatory, legitimate purpose for not hiring Bessie even though she was qualified for the job. Fleggas stated that the only reason Bessie was not given an interview was because he believed that “in-house” meant that only DOA employees would be considered. He and Bullock testified that Bessie was not interviewed because she was not a DOA employee. Bessie did not contradict this evidence.

The court found that the DOA’s decision not to interview Bessie was due to a genuine, although mistaken, belief that only DOA employees were eligible for the position. As a result, this case did not equate to sex discrimination even though it satisfied the elements of disparate impact. Her employer was able to show that the adverse action had a legitimate, albeit mistaken, purpose, and therefore did not constitute disparate impact.

 

 

1 Black’s Law Dictionary 216 (3rd Pocket Ed. 2006).
2 Id. at 215.
3 10A N.C. Admin. Code 5C.0216 (2010).
4 N.C. Gen. Stat. Ann. § 143-422.3 (West 2009).
5 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/faq.html (last visited Mar. 2, 2010).
6 North Carolina Office of Administrative Hearings, http://reports.oah.state.nc.us/ncac/title%2026%20-%20administrative%20hearings/chapter%2004%20-%20civil%20rights%20division/26%20ncac%2004%20.0202.html (last visited Mar. 2, 2010).
7 10A N.C. Admin. Code 5C.0216 (2010).
8 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/faq.html#8(Feb. 10, 2010).
9 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/faq.html#2 (Feb. 10, 2010).
10 See McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973).
11 Lindemann, supra note 144, at 16.
12 Id. at 16, 21.
13 Id. at 18.
14 Id. at 117.
15 42 U.S.C.A. § 2000e-2(k)(1) (West 2009).
16 See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
17 Gordon v. N.C. Dep’t of Corr., 618 S.E.2d 280, 287 (N.C. Ct. App. 2005).
18 Id.
19 See Hubbard v. State Constr. Office, 502 S.E.2d 652 (N.C. Ct. App. 1998).