Reference no: EM131450758

Question: Unsuccessful black promotion candidates sued the employer for race discrimination. The employees alleged that even though the employer's final promotion figures showed no disparate impact, the employer's process of arriving at the bottom-line figures should be subject to scrutiny for disparate impact. The Supreme Court agreed.

Brennan, J.

Black employees of a Connecticut state agency were promoted provisionally to supervisors. To attain permanent status as supervisors, they were first required to receive a passing score on a written examination. There was a disparate impact, in that blacks passed at a rate of approximately 68 percent of the passing rate for whites. The black employees who failed the examination were thus excluded from further consideration for permanent supervisory positions. They then brought an action against the state of Connecticut and certain state agencies and officials, alleging violation of Title VII of the Civil Rights Act of 1964 by requiring, as an absolute condition for consideration for promotion, that applicants pass a written test that disproportionately excluded blacks and was not job related.

Before trial, Connecticut made promotions from the eligibility list, with an overall result that 22.9 percent of the black candidates were promoted but only 13.5 percent of the white candidates-thus no disparate impact resulted from the final promotions. We consider here whether an employer sued for violation of Title VII of the Civil Rights Act of 1964 may assert a "bottom-line" theory of defense. Under that theory, as asserted in this case, an employer's acts of racial discrimination in promotions effected by an examination having disparate impact would not render the employer liable for the racial discrimination suffered by employees barred from promotion if the "bottomline" result of the promotional process was an appropriate racial balance. We hold that the "bottom line" does not preclude employees from establishing a prima facie case, nor does it provide the employer with a defense to such a case.

A nonjob-related test that has a disparate racial impact, and is used to "limit" or "classify" employeesis "used to discriminate" within the meaning of Title VII, whether or not it was "designed or intended" to have this effect and despite an employer's efforts to compensate for its discriminatory effect. Employee's claim of disparate impact from the examination, a pass-fail barrier to employment opportunity, states a prima facie case of employment discrimination under Title VII despite their employer's nondiscriminatory "bottom line," and that "bottom line" is no defense to this prima facie case. Having determined that employees' claim comes within the terms of Title VII, we must address the suggestion of the employer and some amici curiae ["friends of the court"-nonparties who wish to have their positions considered by the Supreme Court in its deliberation of an issue] that we recognize an exception, either in the nature of an additional burden on employees seeking to establish a prima facie case or in the nature of an affirmative defense, for cases in which an employer has compensated for a discriminatory pass-fail barrier by hiring or promoting a sufficient number of black employees to reach a nondiscriminatory "bottom line."

We reject this suggestion, which is in essence nothing more than a request that we redefine the protections guaranteed by Title VII. Section 703(a)(2) prohibits practices that would deprive or tend to deprive "any individual of employment opportunities." The principal focus of the statute is the protection of the individual employee, rather than the protection of the minority group as a whole. The Court has stated that a nondiscriminatory "bottom line" and an employer's good-faith efforts to achieve a nondiscriminatory workforce might in some cases assist an employer in rebutting the inference that particular action had been intentionally discriminatory: Proof that a workforce was racially balanced or that it contained a disproportionately high percentage of minority employees is not wholly irrelevant on the issue of intent when that issue is yet to be decided. But resolution of the factual question of intent is not what is at issue in this case. Rather, employer seeks simply to justify discrimination against the employees on the basis of their favorable treatment of other members of the employees' racial group.

Under Title VII, a racially balanced workforce cannot immunize an employer from liability for specific acts of discrimination. It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant's race are already proportionately represented in the workforce. Congress never intended to give an employer license to discriminate against some employees on the basis of race or gender merely because he favorably treats other members of the employees' group. In sum, the employer's nondiscriminatory "bottom line" is no answer, under the terms of Title VII, to the employees' prima facie claim of employment discrimination. AFFIRMED and REMANDED.

1. After being sued but before trial, why do you think that the agency promoted a larger percentage of blacks than whites when a larger percentage of whites actually passed the exam?

2. Should the employees have been allowed to sue if the bottom line showed no discrimination?

3. How could the employer here have avoided liability?