EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Title VII: Disparate Impact
February 29, 2000
We have received your letter, dated February 17, 2000, concerning employer liability for tests that have a disparate impact on a particular protected group. The Legal Counsel has asked me to respond.
As you are aware, the Equal Employment Opportunity Commission (EEOC) enforces, among other laws, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), which bars discrimination in employment on the bases of race, color, sex, national origin, and religion. In many cases brought under Title VII, the inquiry will concern whether an employer intended to discriminate against a person on the basis of his/her protected status and, if so, whether the employer has a defense to doing so.
Even where an employer does not intend to discriminate, however, it can be found liable under Title VII if it uses a facially neutral practice that has the effect of disproportionately excluding members of a particular protected group. In such cases, which apply the disparate impact theory of discrimination, the individual alleging discrimination must prove -- usually through statistical evidence -- that the challenged practice has a substantial and significant adverse effect on a protected group. If the individual can make this demonstration, the employer will be liable for discrimination unless it can show that the practice in question is job-related and consistent with business necessity. It is the employer's burden to make this showing, and a failure to provide any justification for the practice will likely result in a finding of liability. Even if an employer can demonstrate that a practice is justified, moreover, the individual will be given an opportunity to prove that there are other available practices that would also serve the employer's purposes, but with less impact on the protected group. 42 U.S.C. § 2000e-2(k).
The EEOC, along with several other federal agencies, has promulgated guidelines that can help employers to meet these standards. The Uniform Guidelines on Employee Selection Procedures, a copy of which is attached to this letter, require covered employers to maintain data on the impact caused by their tests and selection procedures. Where those data suggest that a practice does create an adverse impact, employers are required to validate the procedure under technical standards that are discussed in detail in the Guidelines. The validation standards set forth in the Guidelines are intended to be consistent with generally accepted professional
standards for evaluating selection procedures; the newest version of those standards may be obtained from the American Psychological Association. Employers are also expected to include in their validation studies an analysis of whether there are alternative selection procedures that could be used to reduce the identified impact.
In conclusion, proof of a Title VII violation does not in all cases depend on a showing that an employer intended to discriminate. As a result, employers are expected to monitor the impact of each of their selection tools and to ensure that those tools are related to important aspects of the job for which they are used, as well as predictive of an individual's ability to meet those job requirements.
I hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion of the EEOC under Section 713(b) of Title VII.
Dianna B. Johnston
Assistant Legal Counsel
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