the invisible ban: negligent disparate impact - American ...

1879

THE INVISIBLE BAN: NEGLIGENT DISPARATE IMPACT

KENNETH R. DAVIS*

Title VII provides two primary anti-discrimination theories: disparate treatment and disparate impact. Disparate-treatment law prohibits intentional employment discrimination against a member of a protected class. Disparate-impact law imposes strict liability on employers for using facially neutral employment practices that have a disproportionately adverse effect on a protected class.

This Article proposes following the structure of tort law as a template for the law of employment discrimination. A comparison of Title VII to tort law reveals that an analogy to negligent torts is absent from Title VII. The very language of Title VII provides the means to rectify this deficiency by suggesting the duty, causation, and injury elements of a claim of negligent disparate impact. Following the tort analogy, negligent-disparate-impact claims would provide a more expansive array of remedies than those that are available under the current theory of disparate impact. Specifically, compensatory damages and a broad spectrum of equitable remedies would be available to victims of negligent disparate impact. In keeping with the negligence model, this Article then suggests how to adapt the business-necessity defense and the less discriminatory alternative doctrine to negligent-disparate-impact theory.

This Article concludes by pointing out the benefits of recognizing this claim. First, victims would be entitled to remedies that fit the level of wrongdoing. Enhanced remedies would incentivize victims to seek redress and spur employers to cleanse their workplaces of discriminatory practices. Equally important, recognition of a claim for negligent disparate impact would reaffirm federal law’s dedication to achieving equal employment opportunity.

* Professor of Law and Ethics, Gabelli School of Business, J.D., 1977, University of Toledo School of Law; M.A., 1971, University of California, Long Beach; B.A., 1969, University of New York at Binghamton. Thanks to my wife, Jean, the Olympian Law Librarian, whose research always wins gold.

1880 AMERICAN UNIVERSITY LAW REVIEW [Vol. 70:1879

TABLE OF CONTENTS

Introduction ............................................................................. 1881 I. Recognition of the Claim of Negligent Disparate Impact ........................................................... 1887

A. Intentional Discrimination and Intentional Torts ..................................................... 1890 B. Griggs and the Advent of Disparate Impact ............ 1891 C. The Elements of a Negligent-Disparate-Impact Claim ......................... 1895

1. Duty and breach of duty .................................... 1895 2. Causation ............................................................ 1898 3. Harm or injury ................................................... 1899

D. Synthesis ................................................................... 1900 II. Arguments for and Against the Claim ........................ 1900

A. A Deeper Examination of the Statutory Basis for the Claim ................................... 1900 B. The Debate Over a Negligence Approach to Title VII ................................................................ 1902

1. Scholars advocating a negligence approach ............................................................. 1902 2. Scholars challenging a negligence approach ............................................................. 1905

III. Application of the Claim ............................................ 1909 A. Where the Claim Would Apply ............................... 1910 B. Where the Claim Might Not Apply ......................... 1912 C. The Remedies for the Claim ................................... 1915 D. Societal Benefits of the Claim ................................. 1917 E. The Analytical Framework of Disparate-Impact Law ......................................... 1918

IV. Modification of the Business-Necessity Defense ........ 1919 A. The Business-Necessity Defense under Griggs and Albemarle ..................................... 1919 B. The Business-Necessity Defense in Washington v. Davis .............................................. 1922 C. The Business-Necessity Defense for Negligent Disparate Impact .............................. 1924

V. Redefinition of A Less Discriminatory Alternative .......................................... 1926

A. A Less Discriminatory Alternative under Current Law ............................................................. 1926

1. The “refuses to adopt” element ......................... 1926

2021] THE INVISIBLE BAN 1881

2. The inability to prove a less discriminatory alternative .................................. 1929 3. Success in proving a less discriminatory alternative .................................. 1931

B. The Less-Discriminatory-Alternative Doctrine in Negligent-Disparate-Impact Cases ...... 1932

Conclusion ................................................................................. 1935

INTRODUCTION

The murder of George Floyd ignited a resurgence of civil rights activism.1 Spearheaded by Black Lives Matter, this movement has sparked a new dialogue to address racial injustice.2 Developments on several fronts are encouraging. Local and state governments have enacted laws to curtail police abuse and dismantle symbols of racism.3 Prominent corporations, such as PepsiCo, Google, General Motors,

1. Numerous news accounts reported the grisly details of George Floyd’s death. See, e.g., Evan Hill et al., How George Floyd Was Killed in Police Custody, N.Y. TIMES (May 31, 2020), https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html (reconstructing the circumstances of George Floyd’s death and observing that Officer Derek Chauvin pressed his knee into Mr. Floyd’s neck for one minute and twenty seconds after Mr. Floyd had lost consciousness); Dalton Bennett et al., The Death of George Floyd: What Video and Other Records Show About His Final Minutes, WASH. POST

(May 30, 2020) http://www.washingtonpost.com/nation/2020/05/30/video-timeline-george-floyd-death (reporting that a police officer pressed his knee into Mr. Floyd’s neck for eight minutes). In response to the killing of George Floyd, widespread public outrage swept across much of the country. See, e.g., Derrick Bryson Taylor, George Floyd Protests: A Timeline, N.Y. TIMES (Mar. 28, 2021) http://nytimes.com/article/george-floyd-protests-timeline.html (recounting the wave of protests that have erupted across the country as tens of thousands expressed their grief and outrage over the death of George Floyd). On April 20, 2021, a jury, after hearing fourteen days of testimony and deliberating for ten hours, convicted Derek Chauvin of second-degree murder, third-degree murder, and manslaughter. Joe Barrett & Jacob Gershman, Chauvin Convicted of Murder, WALL ST. J., Apr. 21, 2021, at A1. 2. See, e.g., Larry Buchanan et al., Black Lives Matter May Be the Largest Movement in History, N.Y. TIMES (July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html (crediting Black Lives Matter with catalyzing a national movement protesting racial injustice, which has galvanized both the Black and white population and has gained the support of prominent organizations including the National Football League and the National Association for Stock Car Auto Racing (“NASCAR”)). 3. See, e.g., id. (reporting that Minneapolis pledged to dismantle its police department, that New York State repealed a law that prevented disclosure of police records, and that Mississippi lawmakers voted to retire the state flag bearing a Confederate battle emblem).


and PayPal, have launched programs to foster diversity in their workplaces and promote African American representation in leadership positions.4 The National Association of Securities Dealers (“NASD”) has announced a policy requiring boards of NASD-listed companies to include at least one individual from an underrepresented minority.5 Numerous corporations have pledged to devote substantial funding to promote minority-owned business enterprises,6 and not-for-profit organizations, such as Operation Hope, have redoubled their efforts to provide minority entrepreneurs access to capital.7 The march toward racial equality has also encountered setbacks. Proposition 16, which would have restored affirmative action to California college admissions, public employment, and government contracting, faced concerted opposition and ultimate defeat.8

4. See Richard Feloni & Yusuf George, These Are the Corporate Responses to the George Floyd Protests That Stand Out, JUST CAP. (June 30, 2020), https://justcapital.com/news/notable-corporate-responses-to-the-george-floyd-protests [https://perma.cc/9WVM-6YRH] (noting numerous corporate programs to support the advancement of African Americans, including, for example, PepsiCo’s $400 million initiative to increase African American representation in its managerial positions). 5. See Telephone Interview by Andrew Ross Sorkin with Adena Friedman, CEO, Nat’l Ass’n of Sec. Dealers (CNBC television broadcast Dec. 1, 2020) (explaining that the policy will require each NASD-listed company to include at least one woman and one person from an underrepresented minority, which may be an LBTGQ individual, on its board of directors and to disclose publicly the composition of its board within a year of SEC approval). 6. See, e.g., Feloni & George, supra note 4 (spotlighting Bank of America for pledging one billion dollars to promote African American-owned enterprises). 7. Founded in 1992 by John Hope Bryant, Operation Hope “has directed more than $3.2 billion to disenfranchised communities and continues to take action in the face of a global pandemic, an economic crisis, and widespread reckoning with racial injustice.” Dan Schulman, How Financial Empowerment Creates Hope: My Never Stand Still Conversation with John Hope Bryant, 3BL MEDIA (Aug. 19, 2020), https://www.3blmedia.com/News/How-Financial-Empowerment-Creates-Hope-My-Never-Stand-Still-Conversation-John-Hope-Bryant [https://perma.cc/Y4R5-34HU] (originally published on LinkedIn). 8. See Caleb Hampton, Affirmative-Action Measure Falls Short, DAVIS ENTER. (Nov. 5, 2020), https://www.davisenterprise.com/news/local/affirmative-action-measure-falls-short [https://perma.cc/VC2G-5HRZ]. UC Regents Chair, John A. Pérez, lamented, “The failure of Proposition 16 means barriers will remain in place to the detriment of many students, families, and California at large. We will not accept inequality on our campuses and will continue addressing the inescapable effects of racial and gender inequity.” Id.; see also Eric Hoover, Failure of California’s Prop. 16 Underscores Complexity of Affirmative-Action Debate, CHRON. OF HIGHER EDUC. (Nov. 4, 2020), https://www.chronicle.com/article/failure-of-californias-prop-16-underscores-complexity-of-affirmative-action-debate [https://perma.cc/9ETL-MDCW] (noting


The COVID-19 pandemic has intensified the call for racial justice. This disease has ravaged communities of color disproportionately.9 The crisis has underscored disadvantages of these communities, not only in healthcare, but also in income and in employment opportunity.10

In this atmosphere of heightened awareness, Title VII of the Civil Rights Act of 1964 (“the Act”) provides a unique opportunity to advance job opportunities for African Americans.11 As currently interpreted, Title VII provides two principal anti-discrimination theories: disparate treatment and disparate impact.12 Disparate-treatment law prohibits intentional employment discrimination against a member of a protected class.13 Disparate-impact law prohibits facially neutral employment practices that have a disproportionately adverse effect on a protected class.14 Because disparate-impact theory forbids discrimination regardless of motive or mental state, it is a theory of strict liability.15

that the passage of Proposition 209 in 1996 banned affirmative action in California and suggesting that California’s strong opposition to restore affirmative action through Proposition 16 may have been partly attributable to confusion over the proposition’s meaning). 9. See, e.g., Julius M. Wilder, The Disproportionate Impact of COVID-19 on Racial and Ethnic Minorities in the United States, 72 CLINICAL INFECTIOUS DISEASES 709 (Feb. 15, 2021) (reporting that minority communities have suffered a disproportionately high incidence of COVID-19 cases and fatalities compared to the white population). 10. See id. at 709–10 (attributing the prevalence of Covid-19 cases and fatalities in minority communities to comorbidities, such as hypertension and diabetes, lack of access to adequate healthcare, and living and working conditions that raise the risk of exposure). 11. Although the proposal in this Article seeks primarily to provide a new federal claim for disadvantaged minorities, particularly African Americans, it would apply equally to all classes that Title VII protects. See 42 U.S.C. § 2000e-2(a)(2) (making it unlawful to discriminate in employment because of “race, color, religion, sex, or national origin”). 12. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 583 (2009) (discussing the interplay between the disparate-treatment and disparate-impact provisions of Title VII); Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 985–86 (1988) (discussing the requirements of the two theories). 13. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (detailing the burdens of proof in disparate-treatment cases). 14. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (announcing that Title VII condemns both overt discrimination and “practices that are fair in form, but discriminatory in operation”). 15. William R. Corbett, Breaking Dichotomies at the Core of Employment Discrimination Law, 45 FLA. STATE U. L. REV. 763, 788–89, 791 (2018) (discussing EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015)).


Compared to disparate-treatment theory, disparate-impact theory has a drawback. A disparate-treatment violation provides the possibility for the recovery of compensatory and punitive damages.16 A disparate-impact violation merely affords a plaintiff the chance to recover attorneys’ fees, declaratory relief, and perhaps injunctive relief.17

It may be time to reexamine disparate-impact theory. This reexamination might begin by analogizing civil rights law to tort law. Such an analogy is apt because both Title VII and tort law forbid conduct that society recognizes as harmful. Tort law prohibits wrongful conduct that causes injury to person or property, whereas Title VII prohibits discriminatory employment practices.18 It, therefore, seems sensible to use the structure of tort law as a template for the law of employment discrimination. Torts are divided into three categories, derived from the state of mind of the tortfeasor: intentional torts, negligent torts, and strict-liability torts.19 Disparate treatment is analogous to intentional torts, and disparate impact is analogous to strict-liability torts.20 Strikingly absent is a Title VII analogy to negligent torts.21 While some scholars have advocated a negligence approach to discrimination law, others have argued against the tort analogy

16. See 42 U.S.C. §§ 2000e-5(g)(1), 1981a(a)(1) & (b)(1) (allowing a plaintiff to recover compensatory and punitive damages for intentional discrimination evidencing malice or reckless indifference to a federally protected right). 17. See id. § 1981a (limiting compensatory and punitive damage awards to victims of intentional discrimination). 18. See Corbett, supra note 15, at 807–08 (“The Supreme Court has drawn from tort law to develop the theories and principles of employment discrimination law, even referring to employment discrimination statutes as ‘federal tort[s].” (alteration in original)); see also William R. Corbett, Unmasking a Pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself, 62 AM. U. L. REV. 447, 453 (2013) (questioning if the “tortification” of employment discrimination law fails to meet the policies of employment discrimination law). 19. See, e.g., Catherine E. Smith, Looking to Torts: Exploring the Risks of Workplace Discrimination, 75 OHIO STATE L.J. 1207, 1215–16 (stating that negligence is the predominant tort theory and proposing that liability for negligent racial discrimination should arise when a decision-maker creates an unreasonable risk of discrimination based on race). 20. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 577–78 (2009) (discussing disparate treatment and disparate impact). 21. See Aaron v. Sears, Roebuck & Co., No. 3:08 CV 1471, 2009 WL 803586, at *2 (N.D. Ohio Mar. 25, 2009) (dismissing a discrimination complaint because it merely alleged “negligent . . . hiring practices”); Jalal v. Columbia Univ., 4 F. Supp. 2d 224, 241 (S.D.N.Y. 1998) (observing that Title VII does not recognize a claim for negligent discrimination and doubting whether such a claim is even possible).


because tort principles would constrict the salutary reach of Title VII.22 Using tort law as a template for negligent disparate impact, however, does not imply the indiscriminate adoption of tort negligence principles. The language of Title VII provides the contours for such a theory.23

Several arguments support expanding the domain of civil rights violations to negligent disparate impact. First, because strict liability is liability without fault, disparate impact does not attach blame to a violator.24 In some cases, not attributing fault may be appropriate, but in many cases an employer found liable for disparate impact may have had reason to know that discrimination would likely have occurred. In such cases, proving intent may be elusive while proving negligence may be far easier.

The tort analogy also implies that compensatory damages should be available to victims of negligent disparate impact.25 Such availability would encourage victims to pursue their rights, and a finding of negligent disparate impact would inflict reputational harm on the wrongdoer.26 The risk of both a steep monetary judgment and a blow to a company’s reputation would deter discriminatory practices.27 On a more practical level, the long history and refinement of disparate-impact law makes it a perfect candidate for expansion into an independent violation based on negligence. Moreover, disparate impact is easily adaptable to a negligence model. The reinterpretation of Title VII to prohibit negligent disparate impact would also signal the law’s recognition that the quest for equality is a work in progress. It

22. See infra Section II.B and accompanying text (discussing scholars who have supported and opposed the application of tort principles to discrimination law). 23. See 42 U.S.C. § 2000e-2(a)(2) (forbidding an employer to “limit, segregate, or classify . . . an employee . . . because of such individual’s race, color, religion, sex, or national origin”). 24. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (justifying disparate-impact theory by explaining that Title VII is concerned with the consequences of discriminatory acts regardless of the motivation). 25. See, e.g., Mark A. Geistfeld, Social Value as a Policy-Based Limitation of the Ordinary Duty to Exercise Reasonable Care, 44 WAKE FOREST L. REV. 899, 910 n.48 (2009) (noting that “the compensatory right is best protected by a demanding standard of negligence liability”). 26. See, e.g., Claire A. Hill, Marshalling Reputation to Minimize Problematic Business Conduct, 99 B.U. L. REV. 1193, 1196 (2019) (recognizing that the outcomes of litigation may affect the market’s reaction to misbehavior and cause reputational damage). 27. See id. at 1214–15 (discussing the concerns companies have and the strategies they may employ to minimize reputational risk); see also Craig Robert Senn, Ending Discriminatory Damages, 64 ALA. L. REV. 187, 229 (2012) (stating that compensatory and punitive damages punish wrongdoers and deter employment discrimination).


would reaffirm federal law’s dedication to achieving equal opportunity in the workplace.

Part I of this Article examines the development of Title VII law, pointing out the analogy between tort law and the law of employment discrimination. Given that Griggs v. Duke Power Co.,28 extended the analogy to strict-liability torts, this Part proposes to complete the analogy by establishing a claim for negligent disparate impact. Liability for such a claim would require that the defendant, before implementing an employment practice, failed to exercise reasonable care in determining its potential adverse impact on employees in a protected class.

Part II explains that § 2000e-2(a)(2) of Title VII provides the statutory basis to recognize such a claim.29 This Part also explores the policy justifications for the new claim. In its concluding section, Part II analyzes scholarly literature raising arguments for and against the claim proposed in this Article.

Using federal cases as examples, Part III shows that the proposed claim would apply to many, but not all, disparate-impact cases. The advantage of the new theory would be that, following the tort model, negligent-disparate-impact violations would carry remedial and reputational consequences weightier than those resulting from the current strict-liability theory.

Current disparate-impact law provides an affirmative defense, based on business necessity.30 To establish this defense, an employer must demonstrate that the challenged employment practice is manifestly related to job performance.31 Part IV analyzes Albemarle Paper Co. v. Moody32 and Washington v. Davis,33 two leading Supreme Court cases prescribing, though inconsistently, the requirements of establishing the defense. This Part proposes that in negligent-disparate-impact cases business necessity serve only as a partial defense, which would limit a plaintiff’s remedies to declaratory and injunctive relief, costs, and attorneys’ fees. The defense would mitigate, rather than eliminate, liability, because a fortuitous relationship between a negligently adopted practice and job performance does not justify an employer’s failure to exercise reasonable care. An employer’s negligence inflicts harm on job applicants and employees, whether that harm is the loss

28. 401 U.S. 424 (1971). 29. 42 U.S.C. § 2000e-2(a)(2). 30. See Griggs, 401 U.S. at 431. 31. See id. 32. 422 U.S. 405 (1975). 33. 426 U.S. 229 (1976).


of a job, the denial of a promotion, or any adverse employment action. The goals of accountability and deterrence argue for liability for employer negligence.

The disparate-impact framework permits a plaintiff to prevail despite the employer’s demonstration of business necessity. The plaintiff must prove that the employer refused to adopt a less discriminatory alternative that would have been equally effective in achieving the employer’s goals.34 Part V observes that plaintiffs rarely meet the requirements of this doctrine. Because a negligent violation of disparate-impact law is more serious than a no-fault violation, Part V argues that a negligent employer should have a duty to investigate alternative practices before implementing a discriminatory one. If the investigation reveals a less discriminatory alternative, the law would obligate the employer to adopt it. This duty would chasten all prudent employers to investigate and adopt such alternatives and thereby reduce instances of negligent discrimination.

This Article concludes by emphasizing that the analogy between Title VII and tort law is only two-thirds complete. The very language of Title VII invites recognition of negligent-disparate-impact theory. Yet the doctrine goes unrecognized. Like the elusive H.G. Wells character, negligent-disparate-impact theory seems invisible to lawmakers.35 This Article urges them to take notice.

I. RECOGNITION OF THE CLAIM OF NEGLIGENT DISPARATE IMPACT

Torts arise from common law unlike Title VII claims, which are statutory. Nevertheless, several factors link the two types of claims. Both seek to curtail wrongful conduct that society condemns and the harm that such conduct causes,36 and both seek to compensate victims of wrongdoing.37 Deterrence of future unlawful conduct is a third

34. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 578 (2009) (stating that, even if an employer has proven business necessity, a plaintiff may succeed if the employer failed to “adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs”). 35. H.G. Wells, The Invisible Man, Project Gutenberg, (2005). In Wells’ renowned tale, Griffin, the invisible man, embarks on a crime spree that ultimately leads to his death. Like Griffin, negligent disparate impact is invisible because the courts have not recognized it. Unlike Griffin, however, once recognized, this theory will benefit society by helping to eradicate invidious discrimination. 36. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 264–65 (1989) (O’Connor, J., concurring) (comparing torts to discrimination in violation of Title VII). 37. Id.


common characteristic that tort law and Title VII share.38 In some cases, acts that violate Title VII also constitute torts.39 For example, facts supporting a claim of intentional employment discrimination often support claims for the intentional or negligent infliction of emotional distress.40 These commonalities do not imply a blind transference of tort principles to discrimination law. They do suggest, however, that courts consider analogous tort principles and policies when interpreting anti-discrimination statutes.

Analogizing discrimination law to common law is not a novel idea. Justice O’Connor first compared the two in her concurring opinion in Price Waterhouse v. Hopkins.41 Justice O’Connor reasoned, “Like the common law torts, the statutory employment ‘tort’ created by Title VII” seeks to deter conduct “harmful to society as a whole” and “to make persons whole for injuries suffered on account of unlawful employment discrimination.”42 In University of Texas Southwestern Medical Center v. Nassar,43 a Title VII retaliation case, the Court ruled that the burden of proof was causation in fact.44 Noting that “causation in fact . . . is a standard requirement of any tort claim,” Justice Kennedy

38. Id. at 265. 39. See infra note 40 and accompanying text (discussing the overlap between disparate treatment and the intentional infliction of emotional distress). 40. See, e.g., Ondoua v. Montana State Univ., No. 4:18-CV-05-BMM, 2020 WL 5801409, at *1 (D. Mont. 2020) (denying defendants’ motion for summary judgment on plaintiff’s disparate treatment and intentional infliction of emotional distress claims); Arsham v. Mayor & City Council of Balt., 85 F. Supp. 3d 841, 841 (D. Md. 2015) (denying motion to dismiss claims of disparate treatment and intentional infliction of emotional distress premised on overlapping facts of abusive behavior based on employer’s misperception of plaintiff’s ethnicity); Topolski v. Chris Leef Gen. Agency Inc., No. 11-2495-JTM, 2012 WL 984278 *2, *4 (D. Kan. Mar. 22, 2012) (denying a motion to dismiss sex-based disparate treatment and negligent infliction of emotional distress claims alleged substantially on the same facts); Chellen v. John Pickle Co., 446 F. Supp. 2d 1247, 1276 (N.D. Okla. 2006) (ruling after bench trial in favor of plaintiffs’ race-based disparate-treatment claims and intentional infliction of emotional distress claims and noting that awarding damages on both claims would be duplicative because they were “based on much of the same evidence”). 41. See Price Waterhouse, 490 U.S. at 263–65 (O’Connor, J., concurring); see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176–77 (2009) (citing WILLIAM LLOYD

PROSSER ET AL., PROSSER AND KEETON ON TORTS (5th Ed. 1984) (referring to tort treatise to decide the standard of causation in age discrimination cases). 42. See Price Waterhouse, 490 U.S. at 264–65 (O’Connor, J., concurring) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)). 43. 570 U.S. 338 (2013). 44. Id. at 346.


asserted that “this includes statutory claims of workplace discrimination.”45

To support the utility of the tort analogy does not imply that courts should always resort to it. No analogy is necessary when the language of Title VII resolves the issue in question. In Staub v. Proctor Hospital,46 a reservist brought a discrimination claim under the Uniformed Services Employment and Reemployment Act of 199447 (“USERRA”),48 which prohibits discrimination against uniformed service members.49 Staub, an angiography technician who worked for Proctor Hospital, alleged that antimilitary animus motivated two of his supervisors, Korenchuk and Mulally, to fabricate charges against him that ultimately caused Buck, the vice president of human resources, to fire him.50 Staub was a “cat’s paw” case.51 A “cat’s paw” imposes liability on an employer for the animus of a supervisor who influenced but did not make the challenged employment decision.52 The issue in Staub was the causation standard in such a case.53 USERRA, like Title VII, prescribes the motivating factor test, which merely requires that discriminatory animus contributed to the adverse employment action.54 Justice Scalia did not follow this causation standard, which pointed toward the hospital’s liability.55 Taking a detour, he noted, “when Congress creates a federal tort it adopts the background of general tort law.”56 He then proceeded down a tortuous path, unnecessarily invoking the tort proximate-cause doctrine.57 His knotty formulation was as follows: “[I]f a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an

45. Id. 46. 562 U.S. 411 (2011). 47. 38 U.S.C. §§ 4301–35. 48. Staub, 562 U.S. at 415; see Charles A. Sullivan, Tortifying Employment Discrimination, 92 B.U. L. REV. 1431, 1450–55 (2012) (criticizing Staub for unnecessarily injecting proximate-causation into the analysis); id. at 1479 (speculating that this approach might foreclose recognition of discrimination claims based on cognitive or unconscious bias and arguing that “proximate cause might offer the Supreme Court a way to avoid making cognitive bias actionable even when it results in an adverse employment action”). 49. Staub, 562 U.S. at 416. 50. Id. at 414–15. 51. Id. at 415. 52. Id. 53. Id. at 416. 54. Id. 55. Id. at 422. 56. Id. at 417. 57. Id. at 422.


adverse employment action, and if that act is a proximate cause of the ultimate employment action, the employer is liable under USERRA.”58 Justice Scalia erred by not applying the terms of USERRA.

A. Intentional Discrimination and Intentional Torts

A clear analogy links intentional tort with intentional discrimination, a doctrine known as disparate treatment.59 Both involve deliberate wrongdoing that causes harm to individuals, and both types of wrongdoing provide similar remedies, including compensatory damages and, in cases of extreme wrongdoing, punitive damages.60 Intentional employment discrimination, particularly based on race, was the principal wrong that Congress sought to address in Title VII.61 It is not surprising that disparate treatment has drawn significant congressional and judicial attention.62 One might have

58. Id. Because the district court erroneously instructed the jury to apply the motivating factor test, the Supreme Court remanded the case to the Seventh Circuit to decide if the defendant, Proctor Hospital, which had lost the case at trial, deserved a second chance. Id. at 423. 59. See, e.g., Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 334–35 (1977) (discussing the elements of a pattern and practice disparate-treatment case, which entails systemic discrimination directed against a protected class); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973) (announcing the order and allocations of proof in individual disparate-treatment cases). 60. See 42 U.S.C. § 1981a(b) (providing the availability of compensatory and punitive damages to victims of intentional unlawful discrimination). 61. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 577 (observing that “[a]s enacted in 1964, Title VII’s principal nondiscrimination provision held employers liable only for disparate treatment”). 62. In McDonnell Douglas, the Supreme Court announced a three-step burden shifting approach through which plaintiffs alleging individual disparate treatment might prove discriminatory intent. 411 U.S. at 801. Step one requires the plaintiff to prove a prima facie case composed of four elements: (1) the plaintiff was a member of a protected class, (2) the plaintiff was qualified and applied for an available job, (3) the defendant rejected plaintiff’s application, and (4) the defendant continued seeking applicants after rejecting plaintiff. Id. at 802. Once a plaintiff has stated a prima facie case, the burden of production shifts to the defendant to articulate a nondiscriminatory reason for rejecting the plaintiff. Id. At step three, the plaintiff must “be afforded a fair opportunity to show that [defendant’s] stated reason . . . was in fact pretext.” Id. at 804. In Tex. Dep’t Comm. Affs. v. Burdine, 450 U.S. 248 (1981), the Court reaffirmed and explained McDonnell Douglas, noting that, at step three, “the plaintiff will have a full and fair opportunity to demonstrate pretext.” 450 U.S. 248, 255–56 (1981). Although McDonnell Douglas and Burdine held that a plaintiff who disproved the defendant’s step two reasons was entitled to judgment, the Court in St. Mary’s Honor Center. v. Hicks, 509 U.S. 502 (1993) ruled otherwise. 509 U.S. 502, 511 (1993). It instructed that “rejection of the defendant’s proffered reasons will permit the trier of


expected Congress and the courts to limit development of Title VII to disparate treatment, but the law has progressed far beyond that point. In Griggs, the Court took a momentous step by announcing that Title VII prohibits discrimination even when unintentional.63 Griggs advanced the analogy between Title VII and tort law by establishing disparate-impact theory, a form of strict liability that significantly expanded Title VII’s remedial scope. Examining this case and its progeny provides guidance for further expansion.

B. Griggs and the Advent of Disparate Impact

In Griggs, the Supreme Court broadened the statute’s reach to prohibit employment practices that, absent an employer’s discriminatory intent, have a discriminatory effect.64 Duke Power operated an energy generating facility in Dan River, North Carolina.65 It divided its lower-level jobs into five departments, ranging from coal handling to maintenance to laboratory-related positions.66 Before passage of the Act, Duke Power had restricted African American employees to jobs in the labor department, which paid less than any of the other four departments.67 From 1955 to 1964, the company instituted various requirements for employment and transfer, including a high school diploma and performance at or above the national mean for high school graduates on two standardized aptitude tests.68 Notably, Duke Power adopted the requirement of the two

fact to infer the ultimate fact of intentional discrimination . . . [b]ut the Court of Appeals’ holding that rejection of the defendant’s proffered reasons compels judgment for the plaintiff” was erroneous. Id. at 511; see Kenneth R. Davis, The Stumbling Three-Step, Burden-Shifting Approach in Employment Discrimination Cases, 61 BROOK. L. REV. 703, 744 (1995) (arguing that Hicks diverged from McDonnell Douglas by pivoting from the pretext-only standard to the permissive standard); Deborah C. Malamud, The Last Minuet: Disparate Treatment After Hicks, 93 MICH. L. REV. 2229, 2313 (1995) (recommending abandonment of the burden-shifting approach in all its iterations). In the Civil Rights Act of 1991, Congress supplemented the McDonnell Douglas/Hicks framework by enacting § 2000e-2(m), which provides that an employer violates Title VII even if discrimination was merely a “motivating factor” of an employment action. See 42 U.S.C. § 2000e-2(m). 63. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). 64. Id. (adopting disparate impact as a theory of liability under Title VII). 65. Id. at 426. 66. Id. at 427. 67. Id. 68. Id. In 1955 Duke Power began requiring a high school diploma for initial assignment to any department except the lowest, labor. At that time Duke Power also applied the diploma requirement to transfers to the operations, maintenance and the


aptitude tests for initial hires on July 2, 1965—the very date that Title VII became effective.69 This coincident date suggests that Duke Power intended to hinder African American hires and promotions, which is precisely what occurred. The tests and diploma requirement had a disproportionate adverse impact on African Americans.70

The case, however, presented a factual countercurrent. The Court acknowledged that Duke Power’s policy of financing two-thirds of the tuition cost of high school training for its employees lacking a diploma suggested the absence of discriminatory intent.71 Nevertheless, the Court held that the lack of discriminatory intent, even if proven, would not exempt Duke Power from Title VII liability.72 “Congress,” the Court declared, “directed the thrust of the Act to the consequences of employment practices, not simply the motivation.”73 “The Act,” the Court continued, “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”74 Title VII prohibits facially neutral employment practices that have a disproportionate adverse impact on a protected class.75

The Griggs Court also recognized an affirmative defense.76 “The touchstone” of this defense, the Court stated, “is business necessity.”77 The phrase “business necessity,” however, seemed to overstate the basis of this defense, for the Court explained that to establish this defense,

laboratory and test departments. In 1965 Duke Power altered its rules, requiring a high school diploma for transfer from labor to any other department. In July 1965 Duke Power began to require applicants seeking placement in any department excluding Labor to pass the Bennett Mechanical Comprehension Test and the Wonderlic Personnel Test, which purports to measure general intelligence. In September 1965, the company began to permit incumbent employees who passed the two tests to transfer to the operations, maintenance, and laboratory and test department. Id. at 427–28. 69. Id. 70. Id. at 429–30. The Court recognized that segregated schools had long deprived African Americans an adequate education. Id. at 430. 71. Id. at 432. 72. Id. 73. Id. (emphasis added). 74. Id. at 431. The Court observed that “good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.” Id. at 432. 75. Id. at 431. 76. Id. 77. Id.


an employer must show that the challenged employment practice has “a manifest relationship” to job performance.78

Duke Power’s efforts to establish the business-necessity defense proved futile.79 A vice president testified that the company adopted the high school diploma and test requirements to improve the quality of its workforce.80 This assertion seemed dubious because white workers assigned to all five departments before Duke Power’s adoption of the diploma and test requirements performed satisfactorily, although they did not meet these requirements.81 And common sense surely influenced the Court. It seemed preposterous for Duke Power to have argued that scoring at or above the national mean for high school graduates on an aptitude test or having a high school diploma was a reasonable predictor for capably doing maintenance work or shoveling coal.82 The lack of any plausible connection between Duke Power’s selection criteria and job performance may explain why Duke Power did not, and presumably could not, conduct any meaningful study validating its use of the tests or requirement of a high school diploma.83

To circumvent liability, Duke Power relied on § 703(h) of the Act, which authorizes the use of professionally developed ability tests “not ‘designed, intended or used to discriminate because of race.’”84 The Court deferred to Equal Employment Opportunity Commission (EEOC) interpretive guidelines permitting only tests that were job-performance related.85 Legislative history confirmed the EEOC’s view.86 Duke Power thus failed to establish the business-necessity

78. Id. at 432. 79. Id. at 436. 80. Id. at 431. 81. Id. at 427. 82. Id. at 427–28, 431. 83. Id. at 431. 84. Id. at 433 (emphasis added). 85. Id. The EEOC Guidelines on Employment Testing Procedures provide that a test is job-performance related if it “fairly measures the knowledge of skills required by the particular job” or “fairly affords the employer a chance to measure the applicant’s ability to perform a particular job.” Id. n.9. The EEOC supplemented its position in its “Guidelines on Employee Selection Procedures,” which provide: “Evidence of a test’s validity should consist of empirical data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” 29 C.F.R. § 1607.4(c) (1971). 86. See Griggs, 401 U.S. at 434–36. To allay fears that Title VII would ban the use of job performance-related tests, Senators Case and Clark, co-managers of the bill destined to become the 1964 Civil Rights Act, explained in a memorandum that “the


defense because it could not show that its test and diploma requirements related to job performance.87

By adopting disparate-impact theory, Griggs expanded the reach of Title VII to unintentionally discriminatory employment practices. Codified in the Civil Rights Act of 199188 (“the 1991 Act”), this theory of liability does not require a plaintiff to make a showing that the defendant was at fault.89 Like certain areas of tort law, disparate-impact theory imposes strict liability on an employer. Once a plaintiff meets this burden, the employer may attempt to prove the business-necessity defense. Absent such a showing, the employer is strictly liable. The recognition of strict liability under Title VII suggests a further expansion of Title VII into a negligence-based theory.

very purpose of [T]itle VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.” 110 CONG. REC. 7247 (1964). Unconvinced, Senator Tower introduced an amendment to Title VII permitting the use of any professionally designed test, whether predictive of job performance or not. Id. at 13,492. Because the Senate rejected this amendment, Senator Tower proposed a modified version, which would permit an employer to use a test for hiring purposes only if the test predicted job performance. Id. at 13,724. Congress enacted this amendment as § 703(h). 87. Griggs, 401 U.S. at 431. 88. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codified as amended at 2 U.S.C. §§ 60, 1201–24; 16 U.S.C. § 1a-5; 42 U.S.C. §§ 1981, 1988, 2000(e)). 89. 42 U.S.C. § 2000e-2(k)(1)(A) prescribes the law of disparate impact. The subsection provides:

An unlawful employment practice based on disparate impact is established under this subchapter only if—(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or (ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

Id. Congress enacted this subsection to specify the law of strict-liability disparate impact; however, the subsection does not provide for tiers of liability. This Article recommends that, for purposes of negligent disparate impact, the requirements of a business necessity and of a less discriminatory alternative should differ from the requirements of those doctrines under strict-liability disparate impact. See infra Parts IV–V. Because negligent disparate impact would be a new theory of recovery with its own related doctrines and remedies, this Article recommends that courts derive negligent-disparate-impact theory from § 2000e-2(a)(2).


C. The Elements of a Negligent-Disparate-Impact Claim

The tort definition of negligence provides a useful framework for conceptualizing such a possibility. Though this general framework is easily engrafted onto the law of employment discrimination, the terms of Title VII, rather than general tort law principles, dictate the elements of the claim.

1. Duty and breach of duty To establish a negligence claim, a plaintiff must show that the

defendant owed a duty to the plaintiff and breached that duty.90 The duty of an employer to refrain from discriminating against employees in protected classes is the very basis of Title VII.91 To define the duty as “nondiscrimination,” however, would be uninformative, for such a definition merely posits that Title VII’s duty not to discriminate means “nondiscrimination.”92 To be workable, the definition must provide a means of identifying unlawful discriminatory acts or practices. Section 2000e-(2)(a)(2) of the statute does precisely that. It delineates what constitutes the duty and breach of that duty.93 The duty requires employers to refrain from using any employment practice that “would deprive or tend to deprive” or “otherwise adversely affect” a person in a protected class of “employment opportunities.”94 It follows that using such an employment practice is a breach of that duty. As Griggs

90. See, e.g., Mark A. Geistfeld, The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability, 121 YALE L.J. 142, 158 (2011) (noting that duty is an element of negligence). Some modern legal theorists do not include duty as an element of negligence, but rather introduce duty into the analysis as a limitation on liability. See, e.g., RESTATEMENT (THIRD) OF TORTS: GEN. PRINCIPLES § 3 (Discussion Draft 1999) (stating, “The language of ‘subject to liability’ acknowledges the possibility of various affirmative defenses, doctrines of immunity, and ‘duty’ limitations”). 91. See Griggs, 401 U.S. at 430–31. The Griggs Court stated,

The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.

Id. It is therefore clear that discrimination law places a duty on employers. 92. See Richard Thompson Ford, Bias in the Air: Rethinking Employment Discrimination Law, 66 STAN. L. REV. 1381, 1383–84 (2014) (arguing that unlawful discrimination is not adequately defined and that the standard of liability under Title VII should be breach of a duty of reasonable care). 93. See 42 U.S.C. § 2000e-2(a)(2). 94. Id.


instructs, the broad prohibition of Title VII encompasses unintentional discrimination.95 The statute, therefore, generally prohibits negligent discrimination and, more specifically, prohibits negligent disparate impact. Even so, the duty that Title VII imposes is vague, not specifying the degree of discriminatory impact needed to constitute a violation. Existing judicial interpretations of the statute, however, resolve this potential problem. The magnitude of differential treatment must meet a threshold before rising to the level of a statutory violation.96 An insignificant differential impact does not suffice.97 Although the statute does not, and cannot, specify with mathematical precision the magnitude of differential impact needed to constitute a violation,98 the Supreme Court in Watson v. Fort Worth Bank & Trust99 interpreted Title VII to prohibit a practice with “a markedly disproportionate” effect.100 The Court went on to state that an employment practice violates Title VII if the practice has “significant adverse effects”101 proven with “statistical disparities.”102 These pronouncements provide sufficient guidance to define the scope of the duty.

The next question is how to define negligent discrimination and apply that definition to disparate impact. It is a general principle of tort law that “[a] person acts negligently if the person does not exercise reasonable care under all the circumstances.”103 Factors that determine the exercise of reasonable care include the foreseeability and severity

95. Griggs, 401 U.S. at 431. 96. See, e.g., Reyes v. Waples Mobile Home Park L.P., 903 F.3d 415, 425 (4th Cir. 2018) (rejecting “rigid mathematical formula[s]” but requiring substantial disparities). 97. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975) (noting that a plaintiff may prove a prima facie case of discrimination by showing that a test selects applicants from a protected class in significantly lower numbers than that group’s representation in the applicant pool). 98. See Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994–95 (1988) (“Our formulations, which have never been framed in terms of any rigid mathematical formula, have consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation.”). 99. 487 U.S. 977 (1988). 100. Id. at 987 (quoting Griggs, 401 U.S. at 429). 101. Id. at 986. 102. Id. at 994. 103. RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 3 (AM. L. INST. 2010).


of harm that the person’s conduct may cause.104 A failure to exercise reasonable care implies that the defendant knew or should have known that its actions would likely cause harm.105 In the context of employment discrimination, if the defendant knew that its discriminatory employment practice would likely cause harm, the practice would constitute disparate treatment.106 One should therefore adjust the definition of negligent disparate impact to include only instances where the employer should have known that harm would likely occur. Given this modification, an employer negligently breaches the duty prescribed in § 2000e-2(a)(2) if, because of its failure to exercise reasonable care, it should have known that the challenged practice would likely impose on members of a protected class a disproportionate adverse employment action.107 Assume that a police department adopts a minimum height requirement of 5’8” to screen job applicants. The department should have known that the height requirement would have a disproportionate impact on women. The should-have-known element injects negligence into a claim that would otherwise fall to a lower rung on the ladder of culpability and merely call for strict liability.

104. Id. (explaining that the “[p]rimary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm”). 105. See, e.g., Elizabeth M. Bosek, et. al, 65 C.J.S. Negligence § 48 (2021) (noting that foreseeability of injury is an essential element of negligence); see also RESTATEMENT

(FIRST) OF TORTS: INTENTIONAL HARMS TO PERSONS, LAND AND CHATTELS § 12 (1934) (“The words ‘reason to know’ are used throughout the Restatement of this Subject to denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists or that such person would govern his conduct upon the assumption that such fact exists.”). 106. See Shollenbarger v. Planes Moving & Storage, 297 F. App’x 483, 487 (6th Cir. 2008) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975)) (explaining that when a plaintiff identifies an obviously ignored less discriminatory alternative it may establish that the challenged employment practice was a pretext for intentional discrimination); see also Jones v. City of Boston, 845 F.3d 28, 37 (1st Cir. 2016) (noting that an employer that refuses to adopt a less discriminatory alternative that it knows will meet its needs has engaged in intentional discrimination (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 660–61 (1989)));. 107. This Article will state that a defendant had “reason to know” or “should have known” that disparate impact would occur as a shorthand for negligence.


2. Causation Causation of harm is also required to establish general tort liability

in negligence.108 Although causation does not have a single definition, a finding of common-law negligence usually requires both causation in fact and proximate causation.109 If an actor should have known that its actions would probably result in harm to another party or group, the actor’s misconduct was the legal cause of the resulting harm.110 The standard of liability may also be expressed as a failure to exercise reasonable care under the circumstances.111 This standard is best expressed as one of foreseeability.112 Application of this standard to negligent disparate impact would require that the challenged employment practice foreseeably harmed members of a protected class. Recognition of a negligent-disparate-impact claim, however, does not necessarily support injecting negligence causation principles into discrimination law. The provisions of Title VII, supplemented by expressions of congressional intent, determine the statute’s meaning. Courts should resort to the tort analogy only where a statute remains ambiguous, even after consideration of congressional intent. Colored by congressional intent, the statute suggests a causation standard for negligent-disparate-impact cases that differs from the general negligence standard. Section 2000e-2(a)(2) prohibits limiting, depriving, or adversely affecting the employment opportunities of an applicant or employee “because of” that person’s “race, color, religion, sex, or national origin.”113 The section does not specify what “because of” means. The ambiguity of the section’s causation element, therefore, permits numerous interpretations ranging from a minor to a significant cause of the adverse employment action. One

108. See, e.g., RESTATEMENT (THIRD) OF TORTS: GEN. PRINCIPLES § 3 (Discussion Draft 1999) (stating that “[a]n actor is subject to liability for negligent conduct that is a legal cause of physical harm”). 109. See, e.g., id. § 3 cmt. a (2020) (stating that causation in fact and proximate causation are both required to establish negligence); id. PHYS. & EMOT. HARM § 29 cmt. b (2021) (discussing causation in fact and proximate causation and favoring the use of “scope of liability,” which places liability on defendants for harms resulting from the risk that they created). 110. See, e.g., RESTATEMENT (SECOND) OF TORTS: NEGLIGENCE DEFINED § 282 cmt. h (AM. L. INST. 1965) (noting that defendants are negligent when they knew or should have known of the risk that they created). 111. See, e.g., RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 3 (AM. L. INST. 2010). 112. Id. (noting that the foreseeability of harm is a factor in determining whether a party exercised reasonable care). 113. 42 U.S.C. § 2000e-2(a)(2).


interpretation emerges as most likely reflecting congressional intent. Congress amended Title VII by passing the 1991 Act, which clarified the causation standard in disparate-treatment cases.114 The statute merely requires proof that discrimination was a “motivating factor” of an adverse employment action.115 The motivating factor test is a minimal causation standard.116 It demonstrates Congress’s determination to eradicate workplace discrimination. In a negligence case, unlike a disparate-treatment case, an employer is not “motivated” to discriminate because motivation implies some level of intent. Adapting the minimal motivating factor test to negligent disparate impact would require plaintiffs to prove that a negligently selected employment practice contributed, even if insignificantly, to the injury.117 Thus, assuming one or more nondiscriminatory factors played a role in bringing about the adverse decision, the contributing factor test would merely require that the discriminatory practice played any role at all.

3. Harm or injury The harm (or injury) that Title VII proscribes is the consequence of

discrimination which may be, for example, the loss of a job opportunity or a discharge, and the financial losses associated with these adverse outcomes.118 Another source of harm may be the emotional anguish resulting from abusive treatment.119 It is noteworthy that discrimination itself is not the harm element of the claim. Discrimination without a resulting harm would be analogous to the speeding driver who had the good luck not to collide with another vehicle. The driver breached the duty of reasonable care by speeding dangerously above the limit, but because the driver caused no damage to the other vehicle or driver, the unharmed driver would have no claim in negligence.

114. Id. § 2000e-2(m). 115. Id. 116. See Heather K. Gerken, Understanding Mixed Motives Claims Under the Civil Rights Act of 1991: An Analysis of Intentional Discrimination Claims Based on Sex-Stereotyped Interview Questions, 91 MICH. L. REV. 1824, 1840–42 (1993) (analyzing legislative history showing congressional intent to establish a minimal causation requirement under Title VII). 117. Id. at 1828 n.28 (explaining that Congress intended “contributing factor” and “motivating factor” to have identical meanings). 118. See 42 U.S.C. § 2000e-5(g)(1) (2018) (providing remedies for intentional discrimination); id. § 1981a(b) (providing for awards of compensatory and punitive damages). 119. Id. § 1981a(b)(3).


D. Synthesis

To derive a definition of negligent disparate impact, one may combine the elements delineated above. If, because of a failure to exercise due care, an employer should have known that its employment practice would likely have a discriminatory impact on a protected class, the employer has negligently breached the duty prescribed in Title VII. If that negligence contributes to an adverse employment action against members of a protected class, the employer is liable for that injury. In more general terms, a negligently adopted employment practice that causes a disproportionate adverse impact on members of a protected class supports a claim of negligent disparate impact.

II. ARGUMENTS FOR AND AGAINST THE CLAIM

Although Griggs did not base disparate-impact theory on a specific provision of Title VII, the Supreme Court in Connecticut v. Teal120 grounded the theory on § 2000e-2(a)(2).121 The same provision equally justifies adoption of negligent-disparate-impact theory. A more detailed analysis of the section will strengthen the argument for establishing this claim.

A. A Deeper Examination of the Statutory Basis for the Claim

Section 2000e-2(a)(2) declares it unlawful “to limit, segregate, or classify . . . employees . . . in any way which would deprive or tend to deprive any individual [in a protected class] of employment opportunities or otherwise adversely affect his [or her] status as an employee.”122 This language shows the congressional intent to prohibit the broadest range of discriminatory practices. It forbids a classification that “in any way” would even “tend to deprive” employment opportunities to individuals in a protected class or that would “otherwise adversely affect” them.123 In this section, Congress

120. 457 U.S. 440 (1982). 121. Id. at 448 (announcing that disparate-impact theory “clearly falls within the literal language of [§ 2000e-2(a)(2)]”). 122. 42 U.S.C. § 2000e-2(a)(2) (2018). The section states in full:

It shall be an unlawful employment practice for an employer . . . to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Id. 123. Id.


denounced any form of discrimination against an individual in a protected class.124 An employment practice that negligently “limit[s] . . . employees” or “any individual” in a protected class “of employment opportunities”125 fits comfortably within the range of practices that § 2000e-2(a)(2) forbids.126

Griggs provides further support for establishing a negligent-disparate-impact claim. The Court recognized that Title VII sought to dismantle the “built-in headwinds” that have deprived African Americans of employment opportunities.127 Although the principal objective of Title VII was to uproot intentional discrimination from the workplace,128 the Griggs Court stressed that Title VII is not concerned simply with the “motivation” to discriminate.129 “Congress,” the Court emphasized, “directed the thrust of the Act to the consequences of employment practices.”130 This broad interpretation of the Act’s purpose encompasses theories of negligent employment discrimination.

The Supreme Court, in other contexts, has confirmed its preference for inclusive, rather than restrictive, interpretations of Title VII.131 In Oncale v. Sundowners Offshore Services, Inc.,132 the Court held that Title VII’s prohibition of sex discrimination protected both men and women.133 Writing for a unanimous Court, Justice Scalia acknowledged that when Congress enacted Title VII its principal concern was not male-on-male sexual harassment, but he recognized that statutory remedies often apply to “comparable evils.”134

124. See id. 125. Id. 126. But see Olatunde C.A. Johnson, The Agency Roots of Disparate Impact, 49 HARV. C.R.-C.L. L. REV. 125, 135 (2014) (asserting, without specifically referring to § 2000e-2(a)(2), that the original language of Title VII neither confirms nor rejects the proposition that disparate impact constitutes a violation of the Act). 127. Id. at 432. 128. Section 107 of the Civil Rights Act of 1991 provides: “Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for an employment practice, even though other factors also motivated the practice.” Pub. L. No. 102-166, § 107, 105 Stat. 1071, 1075 (1991) (codified as amended at 42 U.S.C. § 2000e-2(m)). 129. Griggs, 401 U.S. at 432. 130. Id. 131. See Oncale v. Sundowners Offshore Serv., Inc., 523 U.S. 75, 78 (1998) (holding that Title VII targets a broad spectrum of disparate treatment). 132. 523 U.S. 75 (1998). 133. Id. at 78. 134. Id. at 79.


The legislative history of Title VII also supports a negligent-disparate-impact theory. The unequivocal policy of Title VII is to eradicate workplace discrimination, regardless of its form. Senator Hubert Humphrey crystalized the purpose of Title VII when he stated that the law addressed “the plight of the Negro in our economy.”135 Another proponent of the 1964 Civil Rights Act, Senator Joseph S. Clark, characterized racial employment discrimination as a “social malaise and social situation which we should not tolerate.”136 These statements illustrate Congress’s determination to eradicate employment discrimination against African Americans and argue for an expansive interpretation of Title VII’s remedial provisions.

B. The Debate Over a Negligence Approach to Title VII

Despite strong support for a Title VII negligence-based claim, some scholars, relying on policy grounds, object to a negligence approach. Others argue that Title VII should include a negligence theory of liability. This debate has generated an insightful body of scholarship.

1. Scholars advocating a negligence approach Professor David Benjamin Oppenheimer begins his groundbreaking

article, Negligent Discrimination,137 with the premise that most discrimination, particularly when based on race, is unconscious.138 Proceeding from that premise, he argues that by focusing primarily on intentional discrimination, courts provide no remedy for a vast number of individual discriminatory acts ostensibly prohibited by Title VII.139 To correct this failure, he advocates adopting a general theory

135. 110 CONG. REC. 6548 (1964) (statement of Sen. Humphrey). 136. Id. at 7220 (statement of Sen. Clark). 137. See David Benjamin Oppenheimer, Negligent Discrimination, 141 PA. L. REV. 899 (1993). 138. Id. at 902; see also Stephanie Bornstein, Reckless Discrimination, 105 CAL. L. REV. 1055, 1105 (2017) (agreeing with Professor Oppenheimer that unconscious discrimination runs rampant, particularly because of organizational structures, and proposing that adopting recklessness as the standard of disparate-treatment liability would aid in addressing this problem); Amy L. Wax, Discrimination as Accident, 74 IND. L.J. 1129, 1130, 1332–33 (pointing out the prevalence of unconscious workplace discrimination and arguing that the current frameworks of disparate treatment and disparate impact do not adequately address this problem). 139. See Oppenheimer, supra note 137, at 917. He points out that disparate-impact law applies strict liability to classes and that such cases are typically brought in class actions rather than by individual plaintiffs on their own behalf. Id. at 922.


of negligent discrimination.140 He supports his thesis by pointing out that in 1993, the year he published his article, discrimination law was already replete with concepts based on negligence theory.141 For example, Oppenheimer observes that the failure to adopt a less discriminatory alternative in a disparate-impact case is an example of a breach of a negligence-based duty to exercise reasonable care.142 Similarly, the duty to reasonably accommodate employees with disabilities143 and the objective standard of reasonableness required of a plaintiff alleging sexual harassment derive from negligence theory.144

Oppenheimer is correct that courts, though not recognizing negligence as a general theory of employment discrimination, have applied negligence theory to areas of Title VII liability. The most salient example is employer liability where nonsupervisory employees commit sexual harassment.145 He is also correct that expanding the application of negligence theory would advance the anti-discrimination policy of Title VII. By prohibiting negligent discrimination, Title VII reaches a broad range of discrimination, including unconsciously motivated bias.

Many scholars have commented favorably on Oppenheimer’s proposal.146 Building on Oppenheimer’s approach, Professor Noah D.

140. Id. at 969 (“Whenever an employer fails to act to prevent discrimination which it knows, or should know, is occurring, which it expects to occur, or which it should expect to occur, it should be held negligent.”). 141. Id. at 935–36. 142. Id. at 936. 143. Id. at 944. 144. Id. at 963. 145. See, e.g., Vance v. Ball State Univ., 570 U.S. 421, 424 (2013) (noting that an employer is liable under Title VII for the sexual harassment of an employee by a co-employee if the employer was negligent, that is, if the employer knew or should have known of the harassment and failed to take remedial action). 146. See, e.g., Leora F. Eisenstadt & Jeffrey R. Boles, Intent and Liability in Employment Discrimination, 53 AM. BUS. L.J. 607, 621–22, 643 (2016) (praising Oppenheimer’s contribution and arguing that mental states that provide criminal law standards of culpability, including criminal negligence, provide a model for liability standards under Title VII); Mark S. Brodin, Discriminatory Job Knowledge Test, Police Promotions, and What Title VII Can Learn from Tort Law, 59 B.C. L. REV. 2319, 2363–68 (2018) (arguing that Title VII should follow the “tort presumption” that individuals intend the natural consequences of their actions, and therefore that repeated employment practices with predictably discriminatory results should be deemed intentional); Noah D. Zatz, Managing the Macaw: Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent, 109 COLUM. L. REV. 1357, 1364 (2009) (proposing that Title VII liability rest on potential workplace harm to an employee because of the employee’s membership in a protected class and the reasonableness of an employer’s responses to avert such harm).


Zatz argues that employment discrimination has three essential elements: (1) membership in a protected class, (2) harm in the workplace resulting from such membership, and (3) employer responsibility for the harm.147 This approach, which merely requires proof of employer negligence to establish liability, does not require proof of discriminatory intent.148 Like Oppenheimer, Zatz points out that discriminatory intent is not required to establish employer liability in third-party harassment cases or reasonable accommodation cases.149 In both types of cases, Zatz stresses, the employer is liable if it has notice that the plaintiff may suffer harm in the workplace because of membership in a protected class and if the employer fails to take corrective action to prevent such harm.150 He therefore proposes that discrimination law generalize this approach to all instances of employment discrimination and eliminate discriminatory intent as a relevant consideration.151

Professor Richard Thompson Ford argues that under current Title VII law discrimination is not only inadequately defined but also is incapable of adequate definition.152 At the core of this problem are confusing notions of intent153 and causation.154 To avoid these confusions, he proposes another variant of general negligence theory.155 Dispensing with intent and murky definitions of discrimination, Ford would base liability on an employer’s failure to exercise due care to prevent “social segregation or hierarchy.”156 His innovation is how broadly he frames this duty, for it would not require proof of a prejudicial motive but would merely require the unfair denial of an employment benefit to a member of a protected class.157

Negligent-disparate-impact theory has advantages compared to the general theories of negligent employment discrimination discussed above. The proposal in this Article derives its elements, insofar as possible, from the language of Title VII and, based on that language, provides maximum protection to victims of discrimination. Employer

147. Zatz, supra note 146, at 1413. 148. Id. at 1364. 149. Id. at 1400. 150. Id. at 1411. 151. Id. at 1364. 152. Ford, supra note 92, at 1383. 153. Id. at 1395–96. 154. Id. at 1408–09. 155. Id. at 1384. 156. Id. 157. Id. at 1385–86.


liability would arise when (1) an employer breached its statutory duty by adopting a practice likely to have an unlawful discriminatory impact and (2) that practice contributed, even minimally, to an adverse employment action against a member of a protected class. Because an employer breaches the statutory duty if it had reason to know that its practice would likely result in disparate impact, proof of breach of duty also serves as proof of causation of harm. This overlap lightens a plaintiff’s burden of proof. For example, if plaintiffs prove that the 5’ 8” minimum height requirement, discussed above, would likely have a discriminatory impact on women, it follows that the requirement was a contributing cause of any ensuing job losses. The minimal causation standard frees employees from having to meet the vexatious proximate causation standard.

The proposal in this Article also provides the advantage of building on the current disparate-impact framework. Current disparate-impact law provides guidance as to what would constitute an unlawful practice under a negligent-disparate-impact theory. The existing strict-liability framework also suggests that a negligence approach should adopt a version of both the business-necessity defense and the less-discriminatory-alternative doctrine. Courts could remold the defense and the doctrine to fit a negligence regime. On the other hand, the strength of this approach is also its weakness, for, as a theory of disparate impact, negligence theory would apply only to a subset of workplace discrimination. The purpose of this theory, however, is not to suggest a comprehensive remedy. The less ambitious goal is to propose a sound framework that combines negligence law with Title VII.

2. Scholars challenging a negligence approach Some scholars have criticized the importation of negligence-related

doctrine into Title VII. Although often well-reasoned, these criticisms do not apply persuasively to the theory of negligent disparate impact proposed in this Article.

Professor Maria L. Ontiveros criticizes the “tortification” of Title VII.158 Tracing the statute’s origins to the Thirteenth Amendment, the struggle of African Americans for civil rights, and norms of international law, she recognizes Title VII as part of the historic movement to achieve racial equality.159 She argues that Title VII

158. Maria L. Ontiveros, The Fundamental Nature of Title VII, 75 OHIO STATE L.J. 1165, 1166–67 (2014). 159. Id. at 1167.


advances this movement by protecting the right to own and use one’s labor.160 Because this is a fundamental right, she argues that Title VII is a super-statute,161 which should be construed contextually rather than literally.162 Ontiveros argues that applying tort analysis to Title VII wrongly injects concepts of intent and causation.163 These incursions of tort law limit the scope of Title VII and frustrate achieving its policy of equal economic opportunity.164

Ontiveros’s argument is intriguing. She elevates Title VII to a stature worthy of its place in civil rights law. To some extent, her contextual view of Title VII may conflict with the proposal in this Article, which is grounded in the language of the statute and the tort concept of foreseeability. Basing the interpretation of a statute on its language, however, is not a radical idea. The proposal in this Article interprets the statutory duty expansively, the causation requirement minimally, and does not require any showing of intent. All these factors would broaden the protections that Title VII affords. Recognizing negligent disparate impact as a claim under Title VII would advance the policy of equal economic opportunity.

Professor W. Jonathan Cardi warns against applying the duty analysis of negligence to Title VII.165 He properly characterizes the negligence duty element as a “gatekeep[er],” which limits the scope of liability.166 This gatekeeping function weighs numerous policies including foreseeability of harm, party expectations, clarity of application, deterrence, and the administrative capabilities of the justice system.167 These considerations and others rest on social norms, which evolve over time.168 By contrast, the duty under Title VII is statutorily defined and, according to Cardi, should not be subject to the vagaries of ever-changing, multi-dimensional negligence duties.169

160. Id. 161. Id. at 1176. 162. Id. at 1201. 163. Id. at 1202. 164. Id. at 1203. 165. W. Jonathan Cardi, The Role of Negligence Duty Analysis in Employment Discrimination Cases, 75 OHIO STATE L.J. 1129, 1161 (2014); see also Jesse Allen, Note, A Possible Remedy for Unthinking Discrimination, 61 BROOK. L. REV. 1299, 1319–20 (1995) (arguing that a general negligence theory of discrimination is problematic because it would create “an explicit category of ‘reasonable’ discrimination”). 166. Cardi, supra note 165, at 1131. 167. Id. at 1132. 168. Id. at 1134. 169. Id. at 1161.


Although Cardi has serious concerns about transposing the complexities of tort duty analysis to Title VII, his concerns do not apply to the proposal in this Article. To the contrary, this Article advocates following the statutory duty prescribed in § 2000e-2(a)(2) and anchoring that duty to the Supreme Court’s test of statistical significance.170 This Article does not advocate diluting this duty by applying tort-like considerations such as judicial inconvenience or antiquated employer prerogatives that would derogate employee rights. Recognition of a negligent-disparate-impact claim would have the opposite effect, expanding rather than contracting the remedies afforded to victims of discrimination. Such an expansion is consistent with the remedial purpose of Title VII. As Cardi observes, current disparate-impact theory incorporates aspects of negligence theory. Both the business-necessity defense and the less discriminatory alternative doctrine consider whether an employer acted reasonably.171 Aspects of negligence reasoning illuminate disparate-impact analysis, and formalizing a negligence disparate-impact theory would clarify what principles such a theory should borrow from negligence law.

Professor Sandra F. Sperino, though acknowledging that tort law may usefully play a limited role in interpreting discrimination statutes, cautions against the reflexive invocation of tort principles.172 She raises numerous concerns,173 many focusing on the doctrine of proximate causation.174 Her causation arguments run substantially parallel to Professor Cardi’s points. Sperino notes that proximate causation limits liability and asserts that other doctrines of discrimination law, such as the circumscribed universe of plaintiffs and defendants, unique defenses, and damage caps, already serve this purpose.175 Proximate

170. See Albemarle Paper, Co. v. Moody, 422 U.S. 405, 429–35 (1975) (requiring statistical evidence to support a business-necessity defense). 171. Cardi, supra note 165, at 1160 (implying that a business necessity renders a practice reasonable). 172. See Sandra F. Sperino, Rethinking Discrimination Law, 110 MICH. L. REV. 69, 107 (2011) (advocating for neither acceptance nor rejection of negligence analysis and suggesting that considering such analysis might increase the courts’ understanding of how discrimination operates). 173. Sandra F. Sperino, The Tort Label, 66 FLA. L. REV. 1051, 1077–79, 1085 (2014) (asserting that tort law and discrimination law differ fundamentally and cautioning against the conflation of their different conceptions of causation and injury). 174. See Sandra F. Sperino, Discrimination Statutes, the Common Law, and Proximate Cause, 2013 U. ILL. L. REV. 1, 11 (2013) (criticizing the viewpoint that federal discrimination law creates analogies to tort law, which make tort law a model for interpreting federal discrimination law). 175. Id. at 22–24.


causation, Sperino argues, is not a single standard but varies depending on policy considerations. Its use in discrimination law would therefore be inappropriate because of discrimination law’s unique statutory causation standards and unique policies.176 Based on these concerns, she fears that the courts might use proximate causation to frustrate the congressional policy to eradicate discrimination in the workplace.177

Although Sperino raises significant points, her thesis does not weaken the argument supporting negligent-disparate-impact theory. As noted above, this theory should follow the statutory scheme and merely require that the discriminatory practice was a contributing factor to the adverse employment action.178

Nevertheless, one might reframe this Article’s duty analysis as an invocation of proximate causation. The argument would proceed as follows: by negligently using a discriminatory practice, an employer foreseeably, and therefore proximately, causes the adoption of that practice. In other words, the proposal in this Article does invoke proximate causation at the breach-of-duty level. The responses to this argument mirror the responses to Cardi’s concerns.179 First, as noted above, recognition of such a claim would expand the protections of Title VII. Second, the language of Title VII invites recognition of a negligence claim, which must have a causation element.180 The should-have-known standard provides that element by converting a strict-

176. Id. at 42 (“These cases are known for their contradictory language and inability to articulate a common rationale for proximate cause. . . . Instead, proximate cause is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy[,] and precedent.”). 177. Id. at 32. Professor Sperino correctly notes that Title VII prescribes the motivating-factor test for disparate treatment, and she is also correct that applying proximate causation to disparate treatment would violate the statute. Id. at 41. This Article opposes the unsubstantiated application of proximate causation to any discrimination claim. 178. See supra Section II.A (discussing the statutory underpinnings of a negligent- disparate-impact claim). 179. See supra notes 165–71 and accompanying text (discussing Professor Cardi’s concerns about applying tort duty analysis to Title VII). 180. The relevant language of Title VII provides:

It shall be an unlawful employment practice for an employer . . . to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)(2).


liability claim into a claim of negligence. This standard is specific, workable, and sensible. It does not promote employer prerogatives at the expense of employee rights. Adopting a lesser causation standard at the breach-of-duty level such as contributing causation would not be appropriate to create a negligence claim because such a minimal causation standard does not imply the requisite level of carelessness.

Federal courts, particularly the Supreme Court, should recognize the negligent use of a discriminatory employment practice as a separate form of disparate impact. It may be true that the current state of the law does not exonerate employers that engage in such practices, but neither does the law impose greater accountability on them. Negligence implies a more blameworthy state of mind than strict liability. As more fully discussed in Part III of this Article,181 the negligent use of discriminatory employment practices calls for remedies not available under existing disparate-impact theory. Part III begins, however, with an exploration of the theory’s applicability.

III. APPLICATION OF THE CLAIM

Despite the arguments favoring the recognition of negligent-disparate-impact theory, one might fairly question how, in practice, such a theory would apply to employment discrimination. This question does not arise for intentional discrimination. Before enactment of Title VII, intentional discrimination had long stymied employment opportunities for those in protected classes, particularly African Americans.182 One can hardly question the need for making intentional discrimination unlawful. The efficacy of disparate-impact law is also beyond question. Not only does disparate-impact law increase the remedial scope of Title VII, but it is also easy to conceptualize and apply. Because the mental state of the defendant does not come into play with strict liability,183 applying such a theory to employment discrimination does not pose any practical difficulties. Proving such a case is straightforward because proof of a disproportionate impact establishes a prima facie violation. Caught between disparate treatment and strict liability, negligent disparate

181. Infra Section III.C. 182. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (confirming that Title VII primarily targeted intentional discrimination); see also 110 CONG. REC. 7220 (1964) (statement of Sen. Clark) (referring to employment discrimination against African Americans as a “social malaise”). 183. See Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (asserting that the absence of discriminatory intent is unnecessary due to disparate-impact strict-liability framework).


impact seems trapped in a conceptual no man’s land. It is reasonable to question under what circumstances an employer would be liable for negligent disparate impact.

A. Where the Claim Would Apply

Griggs is an example of an employer’s negligent use of discriminatory employment practices. Duke Power should have known that the diploma and test selection criteria would have a discriminatory impact on African American applicants and employees who, on average, were less educated than those who were white.184 It therefore breached the § 2000e-2(a)(2) duty not to discriminate.185 Usage of those selection criteria deprived those who were Black of jobs and promotions.186 These facts establish the causation of injury.

Griggs is not unique. Employers using written tests to hire and to promote employees often fail to exercise reasonable care in vetting their tests for possible adverse impacts on minorities.187 Other types of cases present fact patterns amendable to negligent-disparate-impact

184. See id. at 430, 433. 185. Id. at 426–27. 186. Id. at 432. 187. See, e.g., Ricci, 557 U.S. at 586 (finding that the New Haven fire department faced potential disparate-impact liability when the department used tests that would have adversely impacted African American workers). An employer accused of disparate impact might find itself in an untenable situation, for if it retained the challenged discriminatory employment practice, it would face a lawsuit for disparate impact. If, however, it withdrew the allegedly discriminatory employment practice, those who would have benefited from the practice might sue for disparate treatment. See id. at 562. In Ricci, the New Haven fire department used examinations to determine promotions to the ranks of captain and lieutenant. Id. African Americans who performed poorly on the tests threatened a disparate-impact lawsuit unless New Haven discarded the test results. Id. New Haven complied with this demand. Id. This decision gave rise to a disparate-treatment lawsuit by Hispanic and white officers who had performed well on the examinations and would likely have received promotions. Id. at 562–63. The Supreme Court held that the test did have a significant disparate impact on African American firefighters. Id. at 586. Nevertheless, New Haven would have had a valid defense to the disparate-treatment lawsuit if it could have shown a strong basis in the evidence to support its contention that it would have been liable to the minority firefighters either because business necessity did not support the test or because New Haven could have used a less discriminatory alternative. Id. at 587. The Court found that New Haven offered no evidence, let alone a strong basis in the evidence, to meet either burden of proof. The Court therefore granted summary judgment to the plaintiffs for disparate treatment. Id. at 592.


liability.188 For example, in Wallace v. VF Jeanswear L.P.,189 VF operated a distribution center in Marion, Alabama where it employed approximately 330 unskilled workers.190 In a putative class action alleging race discrimination, plaintiffs asserted that the number of African Americans occupying unskilled jobs fell significantly short of the number of African Americans in the relevant labor pool.191 The disparity allegedly resulted from VF’s hiring practices.192 VF publicized its job openings by encouraging its incumbent employees, who were predominantly white, to tell friends and family of job openings and to recommend qualified applicants.193 VF was more likely to hire applicants based on how early they applied and how many recommendations they received.194

It is not surprising that Judge Kallon held that these facts supported a prima facie case of disparate impact.195 It is equally clear that the facts would support a negligent-disparate-impact claim.196 VF’s word-of-mouth hiring practices virtually guaranteed a disproportionately high number of white applicants and white hires for unskilled positions.197 Even if one assumed that VF did not intentionally discriminate, VF, at the very least, should have known that its biased hiring regimen would

188. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 331–32 (1977) (ruling that height and weight requirements for guards in the Alabama prison system had an adverse “discriminatory impact on women”); Reyes v. Waples Mobile Home Park L.P., 903 F.3d 415, 428 (4th Cir. 2018) (finding that Latinos sufficiently alleged a prima facie case of disparate impact where mobile home park operators required occupants above the age of eighteen to provide documentation of legal status); Toomey v. Arizona, No. CV-19-00035-TUC-RM (LAB), 2019 WL 7172144, at *6 (D. Ariz. Dec. 23, 2019) (denying a motion to dismiss where the plaintiff, a transgender male, unsuccessfully sought insurance coverage for gender reassignment surgery). 189. No. 5:18-cv-2009-AKK, 2020 WL 999341 (N.D. Ala. Mar. 2, 2020). 190. Id. at *2. 191. Id. (alleging that, although African Americans held 3–3.5% of the unskilled jobs, they comprised between 4.8% and 32% of the labor pool). 192. Id. 193. Id. 194. Id. 195. Id. at *4. Judge Kallon also noted deficiencies in the application for class action certification. Id. at *6. The putative class was overinclusive because it included friends and family of incumbent African American employees and anyone within reach of information of a job opening. Id. The putative class was also overbroad because it included African Americans that VF might have hired dating back to the opening of the distribution center. Id. To afford the class representatives the opportunity to correct these deficiencies, Judge Kallon granted leave to amend the complaint. Id. 196. Plaintiffs also asserted claims for intentional discrimination under Title VII and § 1981 of the Civil Rights Act of 1866. Id. at *1. 197. Id. at *2.


likely have a discriminatory impact on African Americans. Finally, VF’s hiring practices caused the denial of jobs to African Americans.

B. Where the Claim Might Not Apply

Griggs and VF Jeanswear might suggest that negligent-disparate-impact theory would supplant the current disparate-impact theory by rendering it superfluous. In other words, if both theories of liability apply in all factual scenarios, there would be no need to retain a theory of strict liability. The facts of some cases, however, while supporting a finding of strict liability, might not lend themselves to a finding of negligence. Watson v. Fort Worth Bank & Trust might be such a case.198 Clara Watson, an African American woman, worked for Fort Worth Bank as a proof operator.199 She applied for several promotions, but in each case the positions went to a white applicant.200 The promotion decisions were based on the subjective judgments of bank supervisors, all of whom were white.201 In a class action, she alleged both disparate-treatment and disparate-impact claims.202 The issue was whether disparate-impact theory applied to subjective employment practices.203

Justice O’Connor discerned no reason to exclude subjective criteria from the reach of disparate-impact analysis because, similar to objective facially neutral practices, subjective facially neutral practices may have discriminatory effects.204 She recognized that “subconscious” biases (perhaps “unconscious” biases would better characterize this type of discrimination), though not evidencing discriminatory intent, might result in discriminatory outcomes.205 The bank argued that because subjective criteria involve individualized judgments about hard-to-measure intangibles, such as social skills, employers would find it difficult, if not impossible, to link such criteria to job performance.206 The only approach to avoid liability, it warned, would be the use of

198. Watson v. Fort Worth Bank & Tr., 487 U.S. 977 (1988). 199. Id. at 982. 200. Id. 201. Id. 202. Id. at 983–84. 203. Id. at 982. Both the district court and Fifth Circuit held that a discretionary promotion system is subject to disparate treatment but not disparate-impact analysis. Id. at 984. 204. Id. at 990. 205. Id. To prove this point, Justice O’Connor noted that a bank employee told Watson that a teller position entailed much responsibility with “a lot of money . . . for [B]lacks to have to count.” Id. (omission in original). 206. Id. at 991–92.


quotas.207 Justice O’Connor answered this objection by pointing out that a plaintiff has the burden of identifying an offending practice and must offer statistical evidence to connect that practice to a discriminatory outcome.208 The Court therefore correctly held that subjective employment practices are amendable to disparate-impact analysis.209

Discriminatory subjective decisions, even when unconsciously motivated, often fit the definition of negligent discrimination.210 The question arises whether the employer should have known that a decision maker was prone to discriminate, even if unconsciously, and should have revoked that supervisor’s authority. The answer depends on the facts of the case. If Fort Worth Bank (1) made reasonable attempts to validate its subjective promotion procedure before adopting it; (2) monitored the process once adopted (not in the sense of statistical validation but in the sense of managerial oversight); and (3) did not have reason to know that the subjective decisions had a

207. Id. at 992. 208. Id. at 994 (“Once the employment practice at issue has been identified, causation must be proved . . . .”). She also emphasized that a defendant may challenge a plaintiff’s statistical evidence. Id. at 996. Furthermore, she stressed that statistical validation correlating a challenged practice to job performance is not always necessary for an employer to carry the burden of proving business necessity. Id. 998–99; see, e.g., N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568, 587 n.31 (1979) (permitting a blanket exclusion of methadone users from employment); Washington v. Davis, 426 U.S. 229, 249–50 (1976) (accepting the assertion that a written test administered for entrance into a police training academy was not correlated to performance as a police officer). Justice O’Connor asserted that employers would often encounter less difficulty proving business necessity for subjective practices than for objective practices. Watson, 487 U.S. at 999 (“In the context of subjective or discretionary employment decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a ‘manifest relationship to the employment in question.’”). This assertion troubled Justice Blackmun who feared that Justice O’Connor’s pronouncement might allow employers to escape liability based on “vague, inoffensive-sounding subjective criteria.” Id. at 1009 (Blackmun, J., concurring in part and concurring in the judgment). 209. Watson, 487 U.S. at 999. The Court remanded the case to the Fifth Circuit to determine whether, on the existing record, the plaintiff had established a prima facie case for disparate impact. Id. at 1000. 210. Unconscious discrimination is notoriously prevalent in the workplace. See, e.g., Ann C. McGinley, Discrimination Redefined, 75 MO. L. REV. 443, 456 (2010) (observing that unconscious discrimination often escapes liability under current federal discrimination analysis). See generally Saswot Sharma, Human Mind 6 (Mar. 22, 2015) (unpublished manuscript), http://dx.doi.org/10.2139/ssrn.2664338 (discussing the attributes and distinctions between the conscious, subconscious, and unconscious minds).


disparate impact on African Americans, one might reasonably argue that only the strict-liability theory of disparate-impact should apply. If, by contrast, the bank did not exercise reasonable care in adopting and monitoring the promotion process, negligent-disparate-impact theory would apply. The longer the practice persists, the more likely that the employer should have learned that the practice caused a disparate impact. Prolonged use of a discriminatory practice implies negligent oversight.

Other facts may support the viability of a negligence claim. For example, in Watson, a bank employee told Clara Watson that a teller position involved “a lot of money . . . for [B]lacks to have to count.”211 This statement might support employer negligence. It might even support intent because employers might use subjective practices as a pretext for intentional discrimination.212 Given appropriate facts, a plaintiff may plead any combination of disparate treatment, strict-liability disparate impact, and negligent disparate impact.213

Cases involving subjective employment practices are only one type of case where negligence claims might not apply. Negligence theory might be inapplicable, for example, when a statute compels an employer to engage in an employment practice that turns out to have a disparate impact on a protected class.214 In Florida Education Ass’n v. Florida,215 the State of Florida mandated by statute that county school boards participate in the Florida Best and Brightest Teacher Scholarship Program, which awarded teachers bonuses for teaching excellence.216 The Florida Education Association and seven teachers sued numerous county school boards, alleging that the program had a disparate impact based on race and age.217 The defendant-counties argued that because they were under legal compulsion to participate in the program, they were immune from disparate-impact liability.218 Judge Hinkle rejected this argument.219 Noting that the counties had a

211. Watson, 487 U.S. at 990 (omission in original). 212. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975) (observing that proof of a less discriminatory alternative might indicate that the challenged practice was “a pretext for discrimination”). 213. See FED. R. CIV. P. 8(d)(2) (permitting pleading theories of liability in the alternative). 214. See infra notes 215–20 (discussing Fla. Educ. Ass’n v. Florida, No. 4:17cv414-RH/CAS, 2018 WL 10560520 (N.D. Fla. June 8, 2018)). 215. No. 4:17cv414-RH/CAS, 2018 WL 10560520 (N.D. Fla. June 8, 2018). 216. Id. at *1. 217. Id. 218. Id. 219. Id. at *3.


substantial role in identifying teachers who received bonuses, he held the counties potentially liable “even if another entity mandates the action and provides the funds.”220 Judge Hinkle was correct in holding the counties strictly liable for the discriminatory impact of the program. If, however, the plaintiffs had alleged negligent disparate impact, the ruling might have been different. The counties might well have succeeded in arguing that the disparate impact arose, not from their failure to exercise reasonable care, but from the statutory mandate.

Watson and Florida Education Ass’n represent two types of cases that might not be suitable for negligent-disparate-impact analysis. These categories are not exhaustive. The inquiry in every case must be fact specific.

C. The Remedies for the Claim

Proving discriminatory intent is a slippery proposition.221 Both Duke Power’s diploma and test requirements as well as VF Jeanswear’s word-of-mouth hiring practices may have been pretexts for discrimination, but the plaintiffs could not prove intent.222 Under the facts of these cases, however, the task of proving negligence would not have been nearly as daunting. Thus, negligent disparate impact is a fallback position when victims of discrimination falter in proving intent. The same could be said of strict-liability disparate impact, but negligent disparate impact provides a theory of liability that is more effective and salutary than the

220. Id. The county-defendants also argued that statewide statistics provided an insufficient basis to sustain a complaint alleging liability against individual counties. Id. The court disagreed, finding such statistics sufficient to defeat a motion to dismiss. Id. 221. See, e.g., McGowan v. Billington, 281 F. Supp. 2d 238, 241 (D.D.C. 2003) (recognizing that discriminatory intent is “difficult to prove”); Aziz Z. Huq, What Is Discriminatory Intent, 103 CORNELL L. REV. 1211, 1219 (2018) (arguing that proving discriminatory intent is “slippery” because courts have not reached consensus on the meaning of “discriminatory intent”); Sumi Cho, “Unwise,” “Untimely,” and “Extreme”: Redefining Collegial Culture in the Workplace and Revaluing the Role of Social Change, 39 U.C. DAVIS L. REV. 805, 812 (2006) (arguing that courts accept discriminatory social norms to justify what they should recognize as unlawful discrimination). 222. See Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 990 (1988) (finding subjective employment criteria appropriate for disparate-impact analysis partly because detecting discriminatory intent may be difficult); Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971). See generally George Rutherglen, Disparate Impact, Discrimination, and the Essentially Contested Concept of Equality, 74 FORDHAM L. REV. 2313, 2329 (2006) (arguing that the societal value of limited government intrusion on individual rights has prevented disparate-impact liability from straying far from cases involving discriminatory intent).


strict-liability approach. Unlike strict liability, negligence implies fault, and fault calls for heightened accountability, which is achieved with weightier remedies.

Section 1981a prescribes the damage remedies available to victims of discrimination.223 The section makes compensatory damages available to victims of intentional discrimination and sets maximum awards depending on the number of the defendant’s employees.224 Section 1981a(b)(1) makes punitive damages available when intentional discrimination is grounded in malice or reckless indifference.225 Because the current theory of disparate impact imposes liability without discriminatory intent, it follows that victims of such discrimination may not recover compensatory or punitive damages.226 Only equitable remedies are available to disparate-impact plaintiffs.227 The severity of the remedy for negligent disparate impact should fall between the equitable remedies available for strict-liability

223. 42 U.S.C. § 1981a. 224. Id. § 1981a(b)(3)(A)–(D) (setting maximum awards of compensatory damages, which range from $50,000 for an employer with between 15–101 employees in at least twenty calendar weeks in the current or preceding year to $300,000 for an employer with more than 500 employees in the same period). 225. Id. § 1981a(b)(1). The section provides:

A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency[,] or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.

Id.; see also Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999) (holding that punitive damages are available only when an employer maliciously or recklessly discriminates knowing that it is violating federal law). 226. See 42 U.S.C. § 1981a(a)(1). The section provides:

In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act, and provided that the complaining party cannot recover under section 1981 of this title, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) . . . .

Id. (citations omitted). 227. See, e.g., Landgraf v. USI Film Prod., 511 U.S. 244, 252 (1994) (commenting that Title VII provides equitable remedies to aggrieved parties); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1002 (10th Cir. 1996) (noting that equitable remedies, including reinstatement, backpay, front pay, and declaratory and injunctive relief are generally available to prevailing plaintiffs in Title VII cases).


disparate impact and the damages available in cases of disparate treatment.

A finding of negligence generally justifies the imposition of compensatory damages.228 Discrimination law should follow the same principle. Compensatory damages should be available to victims of negligent disparate impact.229 Either the courts should imply this remedy from § 2000e-(1)(a)230 or Congress should modify § 1981a to authorize the availability of such awards.231

D. Societal Benefits of the Claim

Adoption of a negligent-disparate-impact theory would be beneficial on several levels. By carving out this theory as a separate violation of Title VII and by authorizing awards of compensatory damages, the consequence of the violation would more aptly fit the level of wrongdoing.232 Enhanced awards would deter employers that might otherwise condone or encourage discrimination.233 Public disclosure of court decisions finding that employers negligently violated the rights of minorities would stir rebuke.234 Because those who engage in negligent wrongdoing are more culpable than those who act without fault, employers guilty of using negligent employment practices would

228. See RESTATEMENT (THIRD) OF TORTS: PHYSICAL & EMOTIONAL HARM § 2 cmt. b (AM. L. INST. 2010) (stating that “a showing of negligence generally suffices for compensatory damages, [but] the standard for awarding punitive damages commonly refers to the defendant’s reckless conduct”); Geistfeld, supra note 25, at 910 n.48 (noting that compensatory damages are an available remedy for negligence). 229. See Oppenheimer, supra note 137, at 972 (suggesting that punitive damages should not be available for victims of negligent discrimination). 230. 42 U.S.C. § 2000e-2(a)(2). 231. Id. § 1981a (2018). 232. See, e.g., id. § 1981a(a)(1) (tailoring potential damage awards to the severity of the violation of Title VII). 233. By making compensatory and punitive damages available remedies, Congress sought in the Civil Rights Act of 1991 “to deter unlawful harassment and intentional discrimination in the workplace.” Civil Rights Act of 1991, Pub. L. No. 102-166, § 2, 105 Stat. 1071, 1071; see also Russell M. Gold, Compensation’s Role in Deterrence, 91 NOTRE

DAME L. REV. 1997, 2003 (2016) (arguing that the imposition of damage awards creates more reputational harm than other remedies); Oppenheimer, supra note 137, at 971 (arguing that potential liability for negligence would encourage employers to exercise more care to prevent discrimination). 234. See, e.g., Gold, supra note 233, at 2007–08 (arguing that litigation inflicts reputational harm that deters wrongdoing).


endure more reputational harm than those found strictly liable.235 Apprehension of reputational damage would provide another deterrent, not only to the employer found to have committed the violation, but also to all employers.236 Adopting negligent-disparate-impact theory would advance a broader, though harder to measure, societal benefit. One function of the legal system is to promote societal norms of ethical behavior.237 By adopting the theory of negligent disparate impact, the law would reinforce the public’s internalization of the norm that condemns invidious discrimination.238

E. The Analytical Framework of Disparate-Impact Law

Disparate-impact analysis currently entails a three-step analysis. The first step requires the plaintiff to prove a prima facie case. The second step provides the employer with the opportunity to prove the business-necessity defense. The third step returns the burden of proof to the plaintiff to establish the employer’s refusal to adopt a less discriminatory alternative that would have been equally effective in achieving the employer’s legitimate business purpose. Part IV of this Article discusses the business-necessity defense and proposes that in negligent-disparate-impact cases that defense should merely provide for the limitation of remedies. Part V discusses the less-discriminatory-alternative doctrine and suggests a modification that would require employers to investigate alternative practices before implementation.

235. See, e.g., Roy Shapira, Reputation Through Litigation: How the Legal System Shapes Behavior by Producing Information, 91 WASH. L. REV. 1193, 1226 (2016) (explaining that liability for negligence tends to create greater reputational damage than strict liability). 236. See Abdel-Razeq v. Alvarez & Marsal, Inc., No. 14 Civ. 5601(HBP), 2015 WL 7017431, at *6 (S.D.N.Y. 2015) (noting that an embarrassing public record of an employer’s discrimination deters repeat violations); Gold, supra note 233, at 1999 (arguing that the threat of reputational harm deters employment discrimination). But see Michael Selmi, The Price of Discrimination: The Nature of Class Action Employment Discrimination Litigation and Its Effects, 81 TEX. L. REV. 1249, 1331–32 (2003) (arguing, based on empirical data, that cases of intentional racial discrimination spark moral condemnation and reputational harm, but that more subtle forms of employment discrimination do not have similar salutary effects). 237. See, e.g., Shapira, supra note 235, at 1248 (observing that the law reinforces societal morals by rendering judgments that condemn wrongdoers). 238. See, e.g., Yuval Feldman & Orly Lobel, The Incentives Matrix: The Comparative Effectiveness of Rewards, Liabilities, Duties, and Protections for Reporting Illegality, 88 TEX. L. REV. 1151, 1184 (2010) (citing authority for the proposition that legal rules shape public attitudes).


IV. MODIFICATION OF THE BUSINESS-NECESSITY DEFENSE

Recognizing a negligent-disparate-impact claim requires rethinking the business-necessity defense as it should apply to the new theory. Because negligence implies a higher degree of culpability than strict liability, negligent-disparate-impact cases require a more exacting version of the business-necessity defense than the version now applicable to disparate-impact cases.

A. The Business-Necessity Defense under Griggs and Albemarle

Griggs placed the burden of proving the business-necessity defense on employers.239 Ordinarily, an employer meets this burden by statistically validating its selection criteria.240 In Albemarle Paper Co. v. Moody,241 the Court rejected Albemarle’s statistical showing because of

239. Griggs v. Duke Power Co., 401 U.S. 424, 431–32 (1971) (stating that Congress placed the burden on the employer to prove that “any given requirement must have a manifest relationship to the employment in question,” and concluding that Duke Power failed to conduct a “meaningful study” linking its selection criteria to job performance). In Wards Cove Packing Co. v. Atonio, the Supreme Court upended Griggs and Albemarle, holding that plaintiffs bore the burden of disproving business necessity and that the business-necessity defense merely required proof that the challenged employment practice supported a legitimate business interest. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074, as recognized in Raytheon Co. v. Hernandez, 540 U.S. 44, 52–53 (2003). In the 1991 Civil Rights Act, Congress restored disparate-impact law to its pre-Wards Cove principles. See 42 U.S.C. § 2000e-2(k)(1)(A). That subsection provides:

[A plaintiff alleging disparate impact will prevail] only if . . . the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or [if]the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

Id.; see also Melissa Hart, From Wards Cove to Ricci: Struggling Against the “Built-in Headwinds” of a Skeptical Court, 46 WAKE FOREST L. REV. 261, 270–71 (2011) (noting that the Civil Rights Act of 1991 overruled Wards Cove’s weakening of disparate-impact law). But cf. Peter Siegelman, Contributory Disparate Impact in Employment Discrimination Law, 49 WM. & MARY L. REV. 515, 523 (2007) (suggesting that an employer’s cost of proving business necessity may be onerous). 240. Griggs, 401 U.S. at 432; see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 429–35 (1975) (detailing the failings of Albemarle’s statistical showing); Chi. Tchrs. Union, Local 1 v. Bd. of Educ., 419 F. Supp. 3d 1038, 1045, 1057 (N.D. Ill. 2020), (holding that employers must introduce statistical evidence to sustain a business-necessity defense), appeal docketed, No. 20-1167 (7th Cir. Jan. 31, 2020). 241. 422 U.S. 405 (1975).


flaws in the validation study.242 A point-by-point critique of Albemarle’s validation study showed the Court’s commitment to establishing a meaningful standard for the business-necessity defense.

Albemarle operated a plant in which it converted raw wood into paper products.243 It assigned its 650 employees to departments, each with one or more “lines of progression” providing the opportunity for advancement.244 Until 1964, the company excluded African Americans from the most lucrative lines of progression.245 After trying different selection criteria, the company settled on two aptitude tests, the Revised Beta Examination and the Wonderlic Personnel Test, to qualify applicants for jobs in skilled lines of progression.246 African American employees, seeking transfer to higher paying jobs, had a low success rate on these tests.247

In a class action, African American employees who had been denied transfers alleged that the tests were unlawfully discriminatory.248 Aside from deficiencies in the validation study’s methodology and results, two striking facts undermined the company’s reliance on the challenged tests. First, many white workers in high-paying jobs could not achieve passing scores.249 Second, the company made no effort to correlate scores on these tests with job performance until four months before the case went to trial.250

Relying on EEOC Guidelines, the Court dissected the validation study.251 The Court noted that, although only four African Americans

242. Id. at 430–36 (detailing at least six deficiencies in Albemarle’s study). 243. Id. at 427. 244. Id. 245. Id. 246. Id. at 410–11. 247. Id. at 429. 248. Id. at 409. 249. Id. at 429. 250. Id. at 428–29. Only then did Albemarle belatedly hire an industrial psychologist to validate the tests. Id. 251. Id. at 430–36. Chief Justice Burger faulted the majority’s “slavish adherence” to EEOC Guidelines, which he observed are non-binding. Id. at 452 (Burger, C.J., concurring in part and dissenting in part). He noted that the district court had considered these Guidelines and had favored the approach of Albemarle’s expert. Id. The district court, for example, found that data generated from high- and mid-level employees fairly predicts the results that lower-level employees and job candidates would have yielded. Id. at 452–53. He argued that unless the majority declared the district court’s findings clearly erroneous, the findings must stand. Id. at 453. Justice Blackmun agreed with Chief Justice Burger that “too-rigid application of the EEOC Guidelines will leave the employer little choice, save an impossibly expensive and


participated in the study,252 the company used the tests to screen applicants for entry-level positions, many of whom were African American.253 The study compounded this error by correlating test performance with rankings of employees who held high-level jobs, though African Americans occupied lower-level positions.254 Another flaw in the validation study was that it relied on correlations between test scores and subjective rankings made by supervisors.255 The standards for supervisor rankings, however, were hopelessly vague.256 Perhaps as a result of the vagueness and subjectivity of the standards, correlations of the Wonderlic Test with supervisor rankings were often contradictory and sometimes statistically insignificant.257 The study also failed to evaluate a sufficient number of job categories and performance-related skills.258 Finally, in most instances Beta exam scores did not correlate significantly with job performance.259

Although the Supreme Court rigorously evaluated Albemarle’s validation study, the Court has sometimes been lenient with employers seeking to prove business necessity. In Washington v. Davis,260 the Supreme Court diverged from Albemarle and Griggs by applying a less stringent standard.261

complex validation study, but to engage in a subjective quota system of employment selection.” Id. at 449 (Blackmun, J., concurring in the judgment). 252. Id. at 429–30 (majority opinion). 253. Id. at 435. 254. Id. at 433–34. 255. Id. at 430. 256. Id. at 433. 257. Id. at 432. 258. Id. at 429–32. 259. Id. at 431. 260. 426 U.S. 229 (1976). 261. See N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568 (1979). In Beazer, African Americans and Hispanics commenced a class action asserting Title VII and Equal Protection challenges to the Transit Authority’s policy of refusing to employ methadone users. Id. at 576. The Court found no statutory or constitutional violation. See id. at 587, 594. In so holding, the Court emphasized the risk to the public if methadone users occupied Transit Authority jobs such as subway motormen or bus drivers. Id. at 571. The plaintiffs showed that sixty-three percent of people receiving methadone treatment in New York City were African American or Hispanic, but the Court found that statistic unpersuasive because the same disproportions did not necessarily apply to African Americans and Hispanics who the Transit Authority disqualified from employment. Id. at 585–86.


B. The Business-Necessity Defense in Washington v. Davis

The issue in Washington v. Davis was the validity of Test 21, a qualifying examination for applicants to the Washington, D.C. police training academy.262 Designed to measure verbal ability, vocabulary, and reading comprehension, Test 21 had an adverse impact on African American applicants.263 Two African Americans who were rejected from the training program brought suit in federal district court, arguing that Test 21 denied them equal protection of the laws under the Due Process Clause of the Fifth Amendment.264 A majority of the Court rejected the constitutional claim, ruling that a defendant must have discriminatory intent to deny a person equal protection of the laws and that by definition a showing of disparate impact carried no implication of discriminatory intent.265

Although the plaintiffs did not sue under Title VII, they argued in support of their constitutional claim that Test 21 had an unlawful disparate impact under that statute.266 The Court therefore considered whether Test 21 conformed to the statute’s requirements.267 The majority conceded that Title VII required that an employer seeking to prove a business-necessity defense must correlate the scores of a challenged test with job performance.268 Yet the Washington v. Davis majority expressly rejected plaintiffs’ assertion that under Griggs and Albemarle the defendants had to prove that Test 21 scores predicted the job performance of a police officer.269 Rather, the majority found that

262. Washington, 426 U.S. at 232. 263. Id. at 234–35. 264. Id. at 232–33. 265. Id. at 238–39. See generally Reva B. Siegel, The Constitutionalization of Disparate Impact—Court-Centered and Popular Pathways, 106 CALIF. L. REV. 2001, 2007 (2018) (arguing that popular opinion and the elected branches of government have had at least as much effect as the courts on the constitutional status of disparate-impact law). 266. Washington, 426 U.S. at 249. 267. Id. 268. Id. at 247. 269. Id. Plaintiffs asserted for the first time on appeal that it was meaningless to correlate scores on Test 21 with scores on the final test administered after completion of the training program unless scores on the final test were separately correlated with actual success in the training program and performance of the duties of a police officer. Id. at 249–50. The majority felt it inappropriate to entertain this argument, noting that the training program had undergone substantial revision. Id.


the defendants proved business necessity with a validation study correlating Test 21 scores with performance in the training program.270

Joined by Justice Marshall, Justice Brennan dissented.271 He suggested that the Court should refrain from deciding the Title VII issue because the plaintiffs had alleged only the constitutional issue.272 Nevertheless, given the majority’s ruling on the statutory issue, Justice Brennan discussed it.273 He pointed out that, although the validation study correlated Test 21 with the scores on the final examinations administered to recruits in the training program, no evidence correlated examination scores with either performance on job-related training or the performance of a police officer.274 Furthermore, the validation study assumed arbitrarily that an average score of eighty-five on the tests administered during the training program was satisfactory.275 Validating Test 21 by correlating it with this arbitrary measure was therefore meaningless.276 Justice Brennan argued that, because of these failures in validation, Test 21 violated the principles set forth in Griggs and Albemarle, which require that tests predict job performance.277

Washington v. Davis retreated from the stringent business-necessity defense, adopted in Griggs and refined in Albemarle, and thereby weakened the protections that disparate-impact theory provides to plaintiffs. The question is whether, and how, the defense should be adapted to negligent-disparate-impact theory.

270. Id. at 250. Although acknowledging that a rational basis will not justify an employment practice that has a discriminatory impact, the majority remarked, “It is also apparent to us, as it was to the District Judge, that some minimum verbal and communicative skill would be very useful, if not essential, to satisfactory progress in the training regimen.” Id. at 247, 250. 271. Id. at 256 (Brennan, J., dissenting). 272. Id. at 257. 273. Id. 274. Id. at 262. Justice Brennan cited an EEOC regulation, which provided that to prove business necessity an employer must adduce “empirical data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” 29 C.F.R. § 1607.4(c) (1975). 275. Washington, 426 U.S.at 262–63. 276. Id. 277. Id. at 266–67. Justice Brennan conceded that on a more persuasive record a correlation between a test and training performance might satisfy the requirements of the business-necessity defense. Id. The record in this case, however, did not meet that standard. Id. at 267–68.


C. The Business-Necessity Defense for Negligent Disparate Impact

An employer liable for negligent disparate impact at the very least carelessly subjected its protected employees to discrimination and, at the worst, teetered on the edge of discriminatory intent. For this reason, the proof requirements of the defense in negligence cases should conform to the strict Griggs and Albemarle standard rather than the lax Washington v. Davis standard.278 Furthermore, the business-necessity defense in negligence cases should take account of a defendant’s fault. There is a straightforward way to achieve such accountability. Instead of providing a complete defense, the business-necessity defense in negligent-disparate-impact cases should mitigate remedies by eliminating compensatory damages and equitable remedies except injunctive and declaratory relief, attorneys’ fees, and costs.

Disparate-treatment law provides an analogy to this approach.279 To state a prima facie case for disparate treatment, a plaintiff need demonstrate only that discrimination was a “motivating factor” for the adverse employment action.280 If, however, the employer proves that it would have taken the adverse action based on a non-discriminatory reason alone, the employer has a partial defense, called the “same-decision” defense, which limits available remedies.281 Assume African Americans apply for jobs as a staff accountants at an auditing firm. Assume further that the firm has no openings for staff accountants. The African Americans do not get job offers for this reason, but evidence also shows that the firm would not have hired them because of their race. They sue the firm for disparate treatment. Under these circumstances, the African Americans would prevail but would be entitled to a reduced range of remedies.282 They may be entitled to injunctive and declaratory relief and the recovery of attorneys’ fees and

278. See supra Sections IV.A–B. 279. See supra notes 139–42 and accompanying text (discussing the liability standard that applies to disparate-treatment cases). 280. Section 2000e-2(m) provides: “Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). 281. Id. § 2000e-5(g)(2)(B). 282. Id.


costs but would not be entitled to other forms of equitable relief or compensatory or punitive damages.283

The approach in disparate-treatment cases recognizes that once an employer has committed unlawful discrimination, it cannot justify the wrong. The employer therefore has no complete defense. Its only recourse is to reduce the scope of remedies available to the plaintiff by proving that it would have taken the adverse action independent of its invidious motive.284

The same approach should apply in negligent-disparate-impact cases. Both the same-decision defense and the business-necessity defense are post-discrimination justifications. In both cases the justification comes too late to eliminate fault. The negligent employer did not know, when adopting the challenged practice, that business necessity would support it. As in disparate-treatment cases, once an employee has lost a job opportunity because of a negligent adverse employment action, the employer’s only recourse should be to reduce the scope of the remedy. To qualify for this partial defense, the employer should have to prove that, despite its lack of reasonable care, the challenged practice turned out fortuitously to be job-performance related.

Proving business necessity, however, should not necessarily afford an employer a partial defense. As noted earlier in this Article, the third step in disparate-impact analysis provides the plaintiff with the opportunity to prove that the defendant refused to adopt an equally effective less discriminatory alternative. Part V of this Article discusses the third step of disparate-impact law.

283. Section 2000e-5(g)(2)(B) provides:

On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).

Id. 284. Id. § 2000e-2(m).


V. REDEFINITION OF A LESS DISCRIMINATORY ALTERNATIVE

A. A Less Discriminatory Alternative under Current Law

If an employer proves the business-necessity defense, the disparate-impact analysis moves to step three where the plaintiff has the burden of proving a less discriminatory alternative. To meet this burden, a plaintiff must demonstrate an alternative practice (1) that is less discriminatory than the challenged practice; (2) that is equally effective at meeting the employer’s needs; and (3) that the employer “refuses to adopt.”285 Although courts rarely reach unanimity on the meaning of any doctrine, the federal judiciary has made only sporadic efforts to interpret the “refuses to adopt” element.286

1. The “refuses to adopt” element In Jones v. City of Boston,287 the Boston police department took hair

samples of personnel and analyzed the samples for the presence of illegal drugs.288 Based on the results of the test and follow-up procedures, nine African American police officers lost their jobs, and another was suspended without pay.289 The court ruled that the plaintiffs proved a prima facie case for disparate impact and that the department had met its burden of proving business necessity.290

285. Id. § 2000e-2(k)(1)(A)(ii). The Supreme Court announced the less discriminatory alternative doctrine in Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975), and Congress codified the doctrine in the Civil Rights Act of 1991. Pub. L. No. 102-166, § 107(a), 108, 105 Stat. 1074–76. See also, e.g., Johnson v. City of Memphis, 770 F.3d 464, 472 (6th Cir. 2014) (holding that a less discriminatory alternative has three elements: “(1) the availability of alternative procedures that serve the employer’s legitimate interests and (2) produce ‘substantially equally valid’ results, but with (3) less discriminatory outcomes” (citing 29 C.F.R. § 1607.3(b) (1975))); El v. Se. Penn. Transp. Auth., 479 F.3d 232, 239 n.9 (3d Cir. 2007) (holding that a plaintiff meets its burden of proving a less discriminatory alternative “by showing that an alternative policy [or selection device] exists that would serve the employer’s legitimate goals as well as the challenged policy with less of a discriminatory effect”). 286. See infra notes 309, 310 and accompanying text (discussing various interpretations of “less discriminatory alternative”). 287. 845 F.3d 28 (1st Cir. 2016). 288. Id. at 31. The follow-up procedures required a physician to determine whether legally prescribed medication could have accounted for the positive testing result. Any individual who tested positive had the right to a second testing of a new sample. Id. 289. Id. 290. Id. The First Circuit previously held that the plaintiffs had proved a prima facie case of disparate impact. See Jones v. City of Boston, 752 F.3d 38, 60 (1st Cir. 2014). The court remanded the case to the district court for a determination of whether the


The remaining issue was whether the plaintiffs could establish a less discriminatory alternative to the hair drug test.291 The plaintiffs asserted that if the department required employees to take the hair drug test, it should then administer a random series of urinalyses to those officers who tested positive.292 Before deciding whether the plaintiffs had met their burden of proving that the department had refused to adopt a less discriminatory alternative, the First Circuit had to interpret the meaning of the phrase “refuse to adopt.”293 One possible meaning, the court noted, would require that the employer knew that the alternative was less discriminatory than the challenged practice but declined to adopt it.294 The First Circuit rejected this interpretation because if an employer refused to implement an alternative it knew to be less discriminatory, it would in effect be using the test as a pretext for discrimination.295 Such an interpretation of “refuse to adopt” would, in the opinion of the First Circuit, contradict the very premise of disparate-impact theory, which is to provide redress for unintentional discrimination.296

The First Circuit suggested that a refusal to adopt might merely require that the alternative was available, even if the employer was not aware of it.297 Another interpretation would require that the employer was aware of the alternative but did not adopt it.298 Yet another possibility would require that the plaintiff, rather than a third party, proposed the alternative to a recalcitrant employer.299

city could prove that the hair drug test was a business necessity, and whether the plaintiffs could meet their burden of proving a less discriminatory alternative. Id. On remand, the district court granted the city summary judgment, holding that the hair drug test was a business necessity and that the plaintiffs could not meet their burden of proving a less discriminatory alternative. Jones, 845 F.3d at 31. 291. Jones, 845 F.3d at 34. 292. Id. The district court found that urinalysis alone would not have provided accurate results of cocaine use because it detects such use only within the two days before testing, whereas the hair drug test detected cocaine used within approximately ninety days before testing. Id. at 34, n.2. 293. Id. at 36. 294. Id. at 36–37. 295. Id. at 37 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975)) (reasoning that “such a showing would be evidence that the employer was using its tests as a pretext for discrimination”). 296. Id. 297. Id. 298. Id. 299. Id.


The parties in Jones urged the First Circuit to follow the formulation endorsed by the Seventh Circuit in Adams v. City of Chicago300 and Allen v. City of Chicago.301 That formulation “requires plaintiffs to demonstrate a viable alternative and give the employer an opportunity to adopt it.”302 The First Circuit remanded the case to the district court to consider whether the plaintiffs could meet this burden of proof.303

The Sixth Circuit has offered an interpretation of “refuse to adopt” that is more generous to plaintiffs. In Shollenbarger v. Planes Moving & Storage,304 it held that a violation occurs when an employer “obviously ignored” a less discriminatory alternative with the result that the challenged practice was a pretext for discrimination.305 In Johnson v. City of Memphis,306 the Sixth Circuit applied an even more generous standard: the employer knew or should have known of the alternative before implementing the challenged practice.307 Some courts have suggested that plaintiffs must merely prove that an employer refused to adopt an “available” less discriminatory alternative,308 but regardless of which standard a court applies, the outcomes of cases are

300. 469 F.3d 609, 613 (7th Cir. 2006). 301. 351 F.3d 306, 313 (7th Cir. 2003). 302. Adams, 469 F.3d at 613 (quoting Allen, 351 F.3d at 313); see also Lopez v. City of Lawrence, 823 F.3d 102, 120 (1st Cir. 2016) (holding that to prove a less discriminatory alternative, a plaintiff “must ‘demonstrate a viable alternative and give the employer an opportunity to adopt it’” (quoting Allen, 351 F.3d at 313)). 303. Jones, 845 F.3d at 36. The court noted that, in an affidavit, plaintiffs informed the city that plaintiffs’ expert, Dr. Kidwell, suggested the alternative of hair drug testing plus urinalysis. Id. at 37. The date that plaintiffs first informed the city of Dr. Kidwell’s proposal was unclear. Id. This uncertainty created a material issue of fact. Id. at 38. 304. 297 F. App’x 483 (6th Cir. 2008). 305. Id. at 487. 306. 770 F.3d 464 (6th Cir. 2014). 307. Id. at 473. 308. See, e.g., Abril-Rivera v. Johnson, 806 F.3d 599, 606 (1st Cir. 2015); Guerrero v. Cal. Dep’t of Corr. & Rehab., 2015 WL 13672467, at *5 (N.D. Cal. Apr. 16, 2015).


overwhelmingly consistent.309 Plaintiffs rarely succeed in proving a less discriminatory alternative.310

2. The inability to prove a less discriminatory alternative Chicago Teachers Union, Local 1 v. Board of Education,311 provides an

example of the difficulty plaintiffs encounter when attempting to prove a less discriminatory alternative. In that case, declining student

309. The best interpretation of the “refuse to adopt” element is that the employer knew of the alternative and, regardless of the source of the information, declined to implement it. Title VII’s policy is to cleanse the workplace of discrimination. It therefore should not matter how a less discriminatory alternative came to an employer’s attention. To follow the reasoning of Allen and deny a disparate-impact claim because the employer learned of the alternative on its own or from a third party would create a nonsensical loophole. The material issue is the employer’s awareness of the less discriminatory alternative, not the source of the information. 310. See Lopez v. City of Lawrence, 823 F.3d 102, 121–22 (1st Cir. 2020) (affirming judgment for defendants and finding the “scattershot listing of alternatives” posited by the plaintiff insufficient to demonstrate that the trial findings were clearly erroneous); Williams v. Wells Fargo Bank, N.A., 901 F.3d 1036, 1041 (8th Cir. 2018) (rejecting plaintiffs’ argument that providing notice of disqualification waivers to individuals with felony convictions was a less discriminatory alternative); Hardie v. Nat’l Collegiate Athletic Ass’n, 876 F.3d 312, 321 (9th Cir. 2017) (affirming summary judgment for defendant because plaintiff failed to present sufficient evidence of a less discriminatory alternative to defendant’s policy of barring convicted felons from coaching NCAA-certified athletic tournaments); Johnson, 770 F.3d at 476–77 (reversing the district court’s denial of defendant’s motion for summary judgment and rejecting plaintiffs’ proposed less discriminatory alternatives to police department’s testing regimen for promotion); Shollenbarger, 297 F. App’x at 487 (affirming directed verdict for defendant in sex-based disparate-impact case and noting that defendant’s failure to explore alternatives to layoffs did not meet plaintiffs’ burden to prove a less discriminatory alternative); Adams v. City of Chi., 469 F.3d 609, 616 (7th Cir. 2006) (affirming the district court’s grant of summary judgment for the city because the plaintiff-officers did not prove that a proposed thirty percent merit-based promotion system was available to the city prior to the date of the promotions contested in the case); Allen v. City of Chi., 351 F.3d 306, 315 (7th Cir. 2003) (affirming the district court’s grant of summary judgment for the city because the plaintiff-officers did not prove a less discriminatory alternative to the existing promotion system); Chi. Tchrs. Union, Loc. 1 v. Bd. of Educ., 419 F. Supp. 3d 1038, 1055 (N.D. Ill. 2020) (granting summary judgement to board of education because plaintiff-teachers did not provide sufficient evidence of a less discriminatory alternative to enrollment-based layoffs); Pacheco v. N.Y. Presbyterian Hosp., 593 F. Supp. 2d 599, 623 (S.D.N.Y. 2009) (granting the hospital summary judgment and noting that the plaintiff did not propose a less discriminatory alternative to the hospital’s English-only policy). See generally Kevin Tobia, Note, Disparate Statistics, 126 YALE L.J. 2382, 2411–12 (2017) (arguing that, because the purpose of disparate-impact theory is to remove “unnecessary and discriminatory barriers,” the courts should validate less discriminatory alternatives that merely reduce discriminatory impact, even if insignificantly). 311. 419 F. Supp. 3d 1038 (N.D. Ill. 2020).


enrollments in Chicago resulted in budget reductions.312 To conform the number of teachers to available funding, the board of education laid off more than one thousand teachers.313 These teachers brought a class action alleging that the board’s policy had a disparate impact on African Americans.314 They established a prima facie case with statistical evidence,315 and the board established a business-necessity defense.316

The final issue was whether the teachers could prove that “a less discriminatory, equally effective alternative was available.”317 To meet this burden, plaintiffs offered four possible alternatives.318 First, they proposed that the board should have conducted an adverse impact analysis before eliminating any teaching positions, but Judge Alonso pointed out that such an analysis is not an alternative at all.319 Second, they proposed that, rather than laying off teachers, the board should have transferred them to schools with higher enrollments.320 Judge Alonso rejected this alternative, noting that the plaintiffs failed to demonstrate that the training of any of the laid-off teachers matched the needs of schools with vacant positions.321 Third, the plaintiffs argued that the board could have relied on factors other than enrollment to determine layoffs, but Judge Alonso pointed out that they did not specify any other factors, let alone prove their efficacy.322 Finally, the plaintiffs argued that the board should have found funding sources to save the eliminated teaching jobs.323 Judge Alonso dismissed

312. Id. at 1043. 313. Id. 314. Id. at 1045. 315. Id. 316. Id. at 1050. Judge Alonso recognized that the performance-relatedness standard of the business-necessity defense did not map neatly onto this case. Id. He therefore adapted the defense to consider whether the layoffs were “consistent with genuine business needs.” Id. Ruling that it was, he affirmed the reasonableness of a system that based staffing on student enrollments. Id. 317. Id. at 1052. 318. Id. 319. Id. at 1053. 320. Id. 321. Id. Judge Alonso also pointed out that lateral transfers might constitute adverse employment actions if the conditions in schools to which the board transferred teachers were worse than the conditions in schools from which the board transferred teachers. Id. at 1054. In addition, he observed that principals had veto power over the board of education’s transfer decisions. Id. 322. Id. 323. Id.


this argument because the board had eliminated these jobs, not because of inadequate funding, but because of low enrollments.324

3. Success in proving a less discriminatory alternative Despite the difficulty that plaintiffs typically encounter in proving

less discriminatory alternatives, in NAACP v. North Hudson Regional Fire & Rescue325 (NHRFR), the plaintiffs succeeded.326 In that case, to qualify for firefighter positions in NHRFR, a candidate, in addition to passing a written test, had to reside in one of the five municipalities that NHRFR served.327 African Americans denied eligibility for such positions because of the residency requirement asserted a disparate-impact claim against NHRFR.328 Based on a detailed analysis of expert testimony, Judge Debevoise found that the plaintiffs proved a prima facie case.329

Judge Debevoise next considered whether NHRFR established a business-necessity defense.330 NHRFR asserted four justifications for the residency requirement.331 In a methodical analysis, Judge Debevoise rejected the first three.332

NHRFR’s fourth purported business justification was that because it served a predominantly Hispanic area, the residency requirement would inevitably increase the number of Hispanic firefighters.333

324. Id. at 1055. 325. 742 F. Supp. 2d 501 (D.N.J. 2010), aff’d, 665 F.3d 464 (3d Cir. 2011). 326. Id. at 525; see also Kilgo v. Bowman Transp., Inc., 570 F. Supp. 1509, 1517, 1519–21 (N.D. Ga. 1983) (finding that the trucking company’s one-year experience requirement for drivers had a disparate impact on women and that, even if the company could justify the requirement, a training program was a less discriminatory alternative); cf. MHANY Mgmt., Inc v. Cnty. of Nassau, 2017 WL 4174787, *12 (E.D.N.Y. Sept. 19, 2017) (holding that in the context of discriminatory housing the standard for a legally valid less discriminatory alternative was merely to serve the owner’s interests, not to equally serve the defendant’s interest, as is the case under Title VII, and concluding that the plaintiffs met this burden). 327. NHRFR, 742 F. Supp. 2d at 508. 328. Id. 329. Id. at 521. 330. Id. at 521–25. 331. Id. at 522–24. 332. Id. at 522–23 (finding that NHRFR failed to meet its burden of showing that the residency requirement would (1) increase the likelihood that firefighters would be more familiar with the area, (2) ensure compliance with Rodriguez v. NHRFR, in which NHRFR agreed to promote four Hispanic employees and circulate advertisements in local Spanish media, and (3) increase the number of Spanish-speaking employees working for NHRFR). 333. Id. at 524.


Having more Hispanic firefighters, NHRFR argued, would increase the number of firefighters who spoke Spanish.334 NHRFR contended that having more Spanish-speaking firefighters would enhance communications with Hispanic residents.335 Judge Debevoise debunked this argument, discerning no basis to assume that people of Hispanic descent speak Spanish or are not fluent in English.336 Despite the judge’s rejection of this argument, the plaintiffs acknowledged that having some Spanish-speaking firefighters would enhance the functioning of the fire department.337 Judge Debevoise, therefore, proceeded to the third step of disparate-impact analysis and gave plaintiffs the opportunity to prove a less discriminatory alternative.338 The plaintiffs proposed that, rather than the residency requirement, NHRFR could require a given percentage of firefighters to be bilingual.339 Judge Debevoise found that the plaintiffs’ alternative would achieve NHRFR’s goal of having a sufficient cadre of Spanish-speaking firefighters while reducing the discriminatory impact on African Americans.340

B. The Less-Discriminatory-Alternative Doctrine in Negligent-Disparate-Impact Cases

The less-discriminatory-alternative doctrine should apply to negligent-disparate-impact cases, and the contours of the doctrine should accommodate the negligence template. An employer negligently implementing a discriminatory employment practice should have attempted to mitigate the harm it caused to job applicants and employees. To meet this duty to mitigate harm, an employer must have investigated alternatives before implementing the discriminatory practice. This proposed duty requires implementation of reasonably discoverable alternatives, not obscure alternatives beyond detection. An employer that fails to meet its reasonable duty to investigate alternatives is doubly at fault because it (1) adopted an employment practice that it should have known would have a discriminatory impact, and (2) failed to mitigate harm. Such a negligent employer should

334. Id. 335. Id. 336. Id. 337. Id. at 524. 338. Id. at 524–25. 339. Id. at 525. 340. Id. Judge Debevoise noted that the NHRFR submitted a sample application to the court in which candidates could check a box indicating that they were bilingual in Spanish and English. Id.


therefore face liability for compensatory damages and all forms of equitable relief.

The timing of the duty to investigate alternatives merits discussion. It might seem anomalous that the duty to investigate before adopting the negligent practice arises after implementing the negligent practice. The rationale for this timing is that the negligent employer should have known at the time of implementation that it was adopting a discriminatory practice and therefore should have investigated further to find a less discriminatory alternative. If an employer investigates alternative practices and discovers a less discriminatory one, the employer is obligated to adopt it. Similarly, an employer should be liable if it overlooks an alternative that it should have discovered.

The duty to investigate would have salutary effects in the workplace. An employer might well be unaware of its initial negligence and until it conducts a search it would not likely know whether a less discriminatory alternative exists. Regardless of the employer’s knowledge of either issue, a prudent employer would be wise in all circumstances to search for a less discriminatory alternative and, if having found one, to adopt it. The precautionary measure of always investigating for less discriminatory alternative would not only mitigate employer risk, but it would also avert workplace discrimination. As shown above, the less discriminatory alternative doctrine has provided scant solace to victims of disparate impact.341 The version proposed in this Article would strengthen the chances that a victim of discrimination would prevail.

Shollenbarger v. Planes Moving & Storage342 illustrates how the proposed negligence regime, including the adapted doctrine of less discriminatory alternative, would affect a court’s analysis. Planes Moving & Storage (“Planes”) provided moving services for clients wishing to relocate.343 Declining business prospects led Planes to implement a reduction in force (“RIF”).344 Planes targeted firings to departments such as customer service and credit & collections, which were composed of eighty-nine percent women.345 Four women

341. See supra notes 310–23 and accompanying text. 342. 297 F. App’x 483 (6th Cir. 2008). 343. Shollenbarger v. Planes Moving & Storage, 297 F. App’x 483, 484 (6th Cir. 2008). 344. Id. 345. Id.


employees who lost their jobs in the RIF sued Planes for disparate impact.346 The district court granted Planes a directed verdict.347

On appeal, the Sixth Circuit reversed the district court’s determination that the plaintiffs had failed to prove a prima facie case.348 Citing the plaintiffs’ statistical evidence, the Sixth Circuit noted that a random implementation of the RIF would have resulted in fifty-eight percent female firings.349 Moving to the second step of disparate-impact analysis, the court held that business necessity justified Planes’s RIF strategy.350 The court based its conclusion on Planes’s explanation that the RIF had the greatest effect on the predominantly female departments because the predominantly male departments had been staffed by seasonal workers who had ended their employment before the RIF began.351 This finding brought the case to the third step of disparate-impact analysis: whether plaintiffs met their burden to prove an equally effective less discriminatory alternative.352 Arguing that they met this burden, the plaintiffs cited the magistrate judge’s statement that “there wasn’t any exploration [by Planes] of alternatives to these layoffs at all.”353 The Sixth Circuit rejected the plaintiffs’ argument, holding that the defendant had no such duty.354

If this case had been analyzed under the negligence regime proposed in this Article, the result would likely have been different. Planes’s disparate-impact violation was clearly negligent. It should have known that its RIF strategy would discriminate against female employees who predominated in the targeted departments.355 Although Planes established a business-necessity defense, it failed in its duty to investigate alternative strategies that might have eliminated or

346. Id. The plaintiffs also sued for disparate treatment. Id. The jury returned a verdict for Planes on that claim, and the plaintiffs did not appeal the jury verdict. Id. at 485. 347. Id. at 484–85. 348. Id. at 486. 349. Id. The court also noted that the percentage likelihood of selecting twelve women from the targeted non-management departments was twenty-three percent whereas the percentage likelihood of selecting twelve women from all the non-management ranks of the company was only one-tenth of one percent. Id. 350. Id. 351. Id. 352. Id. 353. Id. at 486–87. 354. Id. at 487. 355. Id. at 486. Planes was certainly aware of the composition of the departments in its workforce.


reduced the discriminatory impact of its RIF.356 Planes, therefore, would have lost this negligent-disparate-impact case at the third stage of the analysis.

CONCLUSION

Congress’s intent in enacting Title VII was to prohibit intentional employment discrimination.357 Griggs expanded the protections of Title VII by establishing disparate-impact theory, a form of strict liability prohibiting unintentional barriers to equal employment opportunity.358 This expansion meant that two of the three theories of tort liability—intentional wrongdoing and strict liability—found analogies in Title VII. The Supreme Court, however, never took the next logical step. It never recognized negligent disparate impact as a general theory of liability. If the purpose of Title VII is to eradicate discrimination, the courts should implement every theory at their disposal to advance that goal.

It is true that Title VII, as now conceived, indirectly prohibits negligent disparate impact, for such a wrong is subsumed under the current version of disparate-impact liability. But the current theory bundles negligence and strict liability claims as if the two were equivalent. They are not. Negligent disparate impact implies a failure to exercise reasonable care. In contrast, the current version of disparate impact imposes liability without fault. A more thoughtful conception of Title VII would unbundle these separate wrongs. Because an element of negligent disparate impact is the failure to exercise reasonable care, the remedies for such a violation should exceed the remedies for adopting a discriminatory employment practice absent provable negligence. Compensatory damages and the full array of equitable remedies should be available to parties injured because of employer negligence.

Under the current approach, once a plaintiff has established a prima facie case of disparate impact, the analysis proceeds to step two where

356. Id. at 486–87. 357. In Ricci, the Supreme Court observed: “As enacted in 1964, Title VII’s principal nondiscrimination provision held employers liable only for disparate treatment.” Ricci v. DeStefano, 557 U.S. 557, 577 (2009). 358. Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971) (holding that facially neutral employment practices that have a discriminatory impact on protected classes violate Title VII).


an employer may seek to establish a business-necessity defense.359 If an employer can prove that the challenged employment practice was manifestly related to job performance, the employer escapes liability.360 Recognition of negligent-disparate-impact theory suggests a modification to the business-necessity defense. That modification would make job-performance relatedness a partial defense, which would limit rather than eliminate remedies. If an employer responsible for negligent disparate impact proved business necessity, plaintiffs would be limited to injunctive and declaratory relief, attorneys’ fees, and costs.

The third step in the analysis of a disparate-impact claim provides that plaintiffs will prevail if they prove a less discriminatory alternative.361 The statutory standard for proving a less discriminatory alternative requires a plaintiff to prove that the employer refused to adopt the alternative.362 Because of the defendant’s culpability in a negligent-disparate-impact case, the law should assign a negligent employer a heavier burden. Such an employer should have a duty to conduct a reasonable investigation to find an alternative practice less discriminatory than the one that it negligently chose. If such an employer failed to meet its duty to investigate, it should potentially be liable for compensatory damages and all equitable remedies.

Negligent-disparate-impact theory is locked within the very terms of Title VII’s remedial provision—§ 2000e-2(a)(2).363 This section makes it unlawful to “limit” the employment opportunities of a person in a protected class.364 A negligent practice with a disparate impact “limits” employment opportunity. Releasing negligent-disparate-impact theory from its statutory confinement will help rid the workplace of discrimination. The courts must merely turn the key.

359. Id. at 431, 434 (announcing that the touchstone of the defense is “business necessity,” which means that the employment practice must have a manifest relationship to job performance). 360. Id.; 42 U.S.C. § 2000e-2(k)(1)(A)(i). 361. § 2000e-2(k)(1)(A)(ii). 362. See, e.g., Allen v. City of Chi., 351 F.3d 306, 313 (7th Cir. 2003) (holding that the statutory scheme requires plaintiffs to demonstrate a viable alternative and give the employer an opportunity to adopt it). 363. That section makes it an unlawful employment practice “to limit, segregate, or classify . . . employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his [or her] status as an employee, because of such individual’s race, color, religion, sex, or national origin.” § 2000e-2(a)(2). 364. Id.

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