HRM textbook

46 PART 1 INTRODUCTION
The process of comparing the percentage of minority employees in a job (or jobs)
at the company with the number of similarly trained minority employees available
in the relevant labor market is utilization analysis.
MCDONNELL-DOUGLAS TEST Lawyers in disparate impact cases use the
previous approaches (such as population comparisons) to test whether an employer s
policies or actions have the effect of unintentionally screening out disproportionate
numbers of women or minorities. Lawyers use the McDonnell-Douglas test for showing
(intentional) disparate treatment, rather than (unintentional) disparate impact.
This test grew out of a case at the former McDonnell-Douglas Corporation.
The applicant was qualified but the employer rejected the person and continued
seeking applicants. Did this show that the hiring company intentionally discriminated
against the female or minority candidate? The U.S. Supreme Court set four
rules for applying the McDonnell-Douglas test:
1. that the person belongs to a protected class;
2. that he or she applied and was qualified for a job for which the employer was
seeking applicants;
3. that, despite this qualification, he or she was rejected; and
4. that, after his or her rejection, the position remained open and the employer
continued seeking applications from persons with the complainant s qualifications.
If the plaintiff meets all these conditions, then a prima facie case of disparate
treatment is established. At that point, the employer must articulate a legitimate
nondiscriminatory reason for its action, and produce evidence but not prove that it
acted based on such a reason. If it meets this relatively easy standard, the plaintiff then
has the burden of proving that the employer s articulated reason is merely a pretext
for engaging in unlawful discrimination.
ADVERSE IMPACT EXAMPLE Assume you turn down a member of a protected
group for a job with your firm. You do this based on a test score (although it could
have been interview questions or something else). Further, assume that this person
feels he or she was discriminated against due to being in a protected class, and decides
to sue your company.
Basically, all he or she must do is show that your human resources procedure
(such as the selection test) had an adverse impact on members of his or her minority
group. The plaintiff can apply three approaches here. These are disparate rejection
rates, restricted policy, or population comparisons. Once the person proves adverse
impact (to the court s satisfaction), the burden of proof shifts to the employer. The
employer must defend against the discrimination charges.
Note that there is nothing in the law that says that because one of your procedures
has an adverse impact on a protected group, you can t use the procedure. In fact, it
may well happen that some tests screen out disproportionately higher numbers of,
say, blacks than they do whites. What the law does say is that once your applicant has
made his or her case (showing adverse impact), the burden of proof shifts to you.
Now you (or your company) must defend use of the procedure.
There are then two basic defenses employers use to justify an employment
practice that has an adverse impact on members of a minority group: the bona fide
occupational qualification (BFOQ) defense and the business necessity defense.
4 Explain and illustrate two
defenses you can use in the
event of discriminatory
practice allegations.
Bona Fide Occupational Qualification
An employer can claim that the employment practice is a bona fide occupational
qualification (BFOQ) for performing the job. Title VII specifically permits this defense.
Title VII provides that it should not be an unlawful employment practice for an employer
to hire an employee . . . on the basis of religion, sex, or national origin in those certain
instances where religion, sex, or national origin is a bona fide occupational qualification
reasonably necessary to the normal operation of that particular business or enterprise.