by Art Gutman Ph.D., Professor, Florida Institute of Technology
I want to use this space to explain why Grant v. Metro is potentially a landmark case in the making. It’s a relatively lengthy story, so please bear with me. The story begins with the Supreme Court’s ruling in Watson v. Fort Worth Bank (1988) [487 US 977] and Wards Cove v. Antonio (1989) [490 US 642]. These two cases are not connected so much by their facts, but rather, by the need for the Supreme Court to amplify a plurality opinion in Watson, a truly good adverse impact case, in Wards Cove, which should have been Int. Teamsters v. United States (1977) [431 US 324] revisited. Then there was the failed attempt to modify Wards Cove and five other 1989 Supreme Court rulings in the Civil Rights Restoration Act of 1990 (CRRA-90) and the successful modification of these cases in the Civil Rights Act of 1991 (CRA-91). I will take it a little at a time.
The Watson & Wards Cove Rulings
Only eight justices heard the Watson case and they unanimously agreed that subjective selection decisions are subject to adverse impact rules. However, a plurality of four argued for fundamental changes in the adverse impact scenario. The facts are that Clara Watson, a black woman, was passed over for promotion four times, each time in favor of a white applicant, and each time based on subjective ratings by white supervisors, including ratings of (1) job performance, (2) interview performance and (3) past experience. It was unclear how these ratings were combined, but there was clearly bottom-line adverse impact for the total selection process. Speaking for three others (Rehnquist, Scalia & White), Justice O’Connor proposed a major change in the adverse impact scenario originally formed in Griggs v. Duke Power (1971) [401 US 424] and Albemarle v. Moody (1975) [422 US 405] such that (1) plaintiffs must identify a cause(s) of adverse impact (which Clara Watson did), (2) prove the causal relationship statistically, and (3) force the defendant to articulate a legitimate nondiscriminatory reason to support the identified causes (as in disparate treatment cases such as McDonnell Douglas v. Green (1975) [411 US 792]). It was the third proposal that led to controversy, since previously, cases involving cognitive tests (e.g., Griggs & Albemarle) satisfied the first two proposals, thereby forcing the defendant to prove (not simply articulate) that the identified cause(s) is job related. In other words, O’Connor’s proposal transplanted a traditional pattern and practice burden to the adverse impact scenario, which was a lighter burden than the traditional adverse impact burden of demonstrating job-relatedness.
A year later, Justice Kennedy joined the Court, forging a majority of five that turned O’Connor’s plurality opinion in Watson into case law. The facts in Wards Cove were that two salmon packing companies had a hiring-hall arrangement for unskilled jobs (salmon packing), but used different procedures to hire skilled workers (e.g., machinists), who were paid, fed, and housed better than the unskilled packers. Eskimos and Filipinos were overrepresented in the unskilled jobs and underrepresented in the skilled jobs. That’s why it should have been Teamsters revisited. As in Teamsters, minorities were congregated in a less desirable job and whites in more desirable jobs. However, in Teamsters, it was clear that minority and white workers were equally qualified; this was the arguable issue in Wards Cove. More on that part later. For present purposes, a majority of five used this case to cement O’Connor’s prior proposals.
Then, Congress tried to overturn Wards Cove (and five other cases) in CRA-90, but President Bush vetoed the bill. The House easily overrode the veto, but the Senate failed to concur by only a single vote. The main reason for the veto was political disagreement on Wards Cove. Feeling the pressure of a near override, Congress got serious in CRA-91 and overturned Wards Cove and the other cases. CRA-91 kept O’Connor’s first two proposals but not her third. Of interest here for Grant v. Metro is the provision that if the cause of adverse impact cannot be identified because components of it cannot be disaggregated, then the total selection procedure should be analyzed as a single practice. More importantly for the general adverse impact scenario, the defense for proven adverse impact was restored to “job relatedness and consistency with business necessity” which, for all intents and purposes, is a restatement of the original defense from Griggs and Albemarle.
(you might want to take a refreshment break here … I have much more to come)
How Wards Cove Should Have Been Decided
What characterized cases like Griggs and Albemarle is that proof of adverse impact required statistically significant differences in applicant flow rates (or implied chilling factors such as educational requirements). What characterized pattern or practice cases such as Teamsters is the need to explain (not necessarily prove) why gross stock statistical disparities existed. What muddied the waters was a slew of lower court cases in which plaintiffs charged both adverse impact based on only stock statistics. Historically, this was not an issue because the ruling invariably went in the direction of the pattern or practice claim. That is, no adverse impact claim in any such case was supported while, at the same time, the pattern or practice claim was turned down. Similarly, the adverse impact charges failed every time the pattern or practice charges failed. The lone exception to this rule, both pre and post-Wards Cove, was Wards Cove.
In Wards Cove, the district court favored the defendants on both pattern and practice and adverse impact and the 9th Circuit, while upholding the pattern or practice ruling, reversed the adverse impact ruling, thereby forcing the defendants to prove job relatedness of their selection procedures. Sound familiar? In Grant v. Metro, a jury ruled for the defense on pattern or practice and the district court judge, after prompting from the 6th Circuit, upheld the adverse impact ruling. The district court judge also favored a motion for a new trial on pattern or practice, which the 6th Circuit endorsed.
Here’s What I Predict
Regardless of what happens in the new trial, there will be an appeal for en banc ruling by the 6th Circuit. Regardless of what this ruling is, there will ultimately be a Supreme Court ruling.
Here’s What I Hope Will Happen
In my opinion, Wards Cove would have been A-OK had the Supreme Court correctly identified the charges as valid for pattern or practice (thereby forcing defendants to articulate a legitimate explanation and plaintiffs to prove that the explanation is a pretext for class-wide disparate treatment), but that the adverse impact charges were invalid because there were no applicant flow statistics (or implied chilling factors). The Supreme Court did not have to change any adverse impact rules. There has been no opportunity for such a ruling since Wards Cove.
Grant v. Metro also offers resolution for the identification provision in CRA-91. Two out of three 6th Circuit judges ruled Grant failed to carry its burden on treating the entire selection procedure as one practice, and a dissenting judge thought otherwise. However, this is the lesser of my two concerns. Had there been failure to disaggregate in the face of bottom-line applicant flow disparities, I would agree with the dissenting judge. The more important issue is, in my opinion, that adverse impact and pattern or practice cases should not be confused with each other, which is, after all, what the Wards Cove ruling “accomplished.”
Ultimately, Congress both preserved and reversed portions of the Wards Cove ruling in CRA-91.
I could say more but that’s enough for now. By the way, if you want an easy way to read the Supreme Court cases cited above you can use “cases” link at http://uwf.edu/cap/eeolaw/
September 19, 2011