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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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R.J. Reynolds Tobacco must face federal age bias claims by an online applicant repeatedly rejected for sales positions because screening devices used in the hiring process disproportionately impacted older applicants generally and the lawsuit claimant in particular, the 11th U.S. Circuit Court of Appeals ruled.
The literal wording of Title VII of the 1964 Civil Rights Act is that only intentional job discrimination subjects covered employers to job bias liability. Nonetheless, the very first Title VII case decided by the U.S. Supreme Court, Griggs v. Duke Power Co., 401 U.S. 424 (1971), held that employment practices that are neutral on their face can create liability if they have a greater negative effect on a protected class than on other employees. Duke Power implemented a requirement that to advance into high-paying jobs, employees had to either possess a high school diploma or pass a general intelligence test. Black employees were disproportionately affected because as a group they were less educated and less able to pass the screening test. Duke Power could not show a business necessity for the diploma or test-passing requirement because white employees hired before the implementation of these screening devices sometimes possessed neither of these credentials yet performed satisfactorily.
Federal appellate courts have previously applied this “adverse impact” theory, also known as “disparate impact” to 1) applicants for employment and 2) employees claiming age discrimination. The court here applied the theory to applicants claiming age discrimination.
The employer utilized selection criteria in evaluating applicants for sales positions that included instructing hiring managers to target candidates two to three years out of college and to avoid hiring candidates with eight to ten years of prior sales experience. The claimant in this case was 49 years of age, with corresponding career experience. He was rejected for hire five different times.
The court held that although some over-age-40 applicants might be only two to three years out of college and have no more than eight to ten years of sales experience, statistical evidence showed the obvious: that these selection criteria had a much greater adverse impact on older employees. The employer argued that it had imposed these requirements to “grow its own” sales force, but that argument did not carry the day. There was no proof that incumbent salespeople with more years out of college and greater sales experience could not perform satisfactorily. Logically, the contrary is more often the case.
Villarreal v. Reynolds Tobacco Co. LLC, 11th Cir., No. 15-10602 (Nov. 30, 2015).
Professional Pointer: This case illustrates that “disparate treatment” analysis may not be the end of the necessary inquiry. Even if an employment policy is applied across the board and is neutral on its face, it may still be unlawful due to “disparate impact” analysis if not justified by business necessity.
Philip M. Van Hoy is an attorney with Van Hoy Reutlinger Adams & Dunn, the Worklaw® Network member firm in Charlotte, N.C.
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