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Weighing in on a split among the circuits, the 5th U.S. Circuit Court of Appeals has ruled that the ultimate burden of proof in a disparate impact discrimination case under Title VII lies with the employee, not the employer.
Mississippi Power and Light Company (MP&L) had a reduction-in-force across its workforce in 1995. Its employees were represented by the International Brotherhood of Electrical Workers (IBEW), whose collective bargaining agreement permitted bumping on the basis of seniority in the event of a layoff.
Two employees, Larry Bridges and Joyce Riley, both of whom are black, worked as electric metermen and were laid off in the reduction-in-force.
Bridges and Riley had bumping rights for positions held by less-senior employees. They attempted to bump into storekeeper positions, but were required to pass a validated aptitude test called the clerical aptitude battery (CAB) test. Neither Bridges nor Riley scored high enough on the test to meet the cutoff score set by MP&L, and neither was allowed to bump into the positions.
The IBEW, Bridges and Riley filed suit under Title VII. They alleged that MP&L’s setting of the cutoff scores on the CAB test had a disparate impact on black employees and was unlawful.
At trial, the evidence showed that, up to 1989, MP&L had used a cutoff score of 178 for the storekeeper positions. From 1989 to 1993, MP&L lowered the cutoff score to 150. In 1993, MP&L raised the cutoff score to 180, to achieve uniformity in the cutoff score with other divisions.
According to expert testimony, an applicant with a score of 180 had almost a 50 percent chance of developing into an above-average worker and only a 31 percent chance of being in the bottom third of all workers. The likelihood of a worker being an above-average worker was significantly less using a cutoff of 150. Bridges and Riley did not meet the cutoff of 180.
The district court placed on MP&L the burden of demonstrating the absence of an acceptable alternative employment practice. The district court said, “The business justification evidence offered by the defendant must … justify an employer’s use of the practice in question and establish that there are no alternative practices that would achieve the same business ends, with less racial impact.”
The 5th Circuit regarded this as a misapplication of the law. It found that the plaintiffs had established a prima-facie case of disparate impact and that MP&L demonstrated that the challenged business practice was job-related and consistent with business necessity. Raising the cutoff score significantly increases the likelihood of an employee becoming proficient in the position.
The 5th Circuit also found that the plaintiffs failed to offer any meaningful alternative employment practices as required by Title VII. The plaintiffs failed to carry their burden and judgment was entered for MP&L.
International Brotherhood of Electrical Workers Local Union Nos. 605 and 985 vs. Mississippi Power and Light Co., 5th Cir., No. 04-60975 (March 2, 2006).
Professional Pointer:The 8th Circuit is the outlier in this circuit split in imposing on the employer the burden of demonstrating that there is no reasonable alternative to the employment practice in question. The 3rd, 11th and now the 5th Circuits have ruled that the employer need only show that the practice is job-related and consistent with business necessity. Employers should be mindful what circuit they are in when faced with this issue; it is virtually impossible for an employer to prove a “negative,” as required by the 8th Circuit.
David B. Ritter is an attorney with the firm of Neal, Gerber & Eisenberg LLP in Chicago.
Editor’s Note: This article should not be construed as legal advice.
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