Title VII of the 1964 Civil Rights Act (CRA) prohibited discrimination against employees on the basis of race, color, religion, sex, or national origin (the acronym SNORRC, suggested by a former student in this course, may help you remember these). Additional anti-discrimination laws have been passed over the past 40 years or so, but neither these laws nor the 1964 CRA have provided a definition of illegal discrimination. Through court decisions, however, two major definitions of discrimination have emerged: (1) disparate treatment; and (2) disparate impact.
The disparate treatment definition entails intent, & is therefore relatively noncontroversial. The disparate impact definition, however, does not require intent, & therefore remains controversial. In addition, courts have also allowed for exceptions (BFOQ) in which organizations are legally permitted to engage in disparate treatment. In this forum, you are asked to address one of the following questions.
1. The BFOQ (bona fide occupational qualification) exception (see the posting “BFOQ issues”) allows organizations to legally discriminate on the basis of a protected attribute or category. Four postings (“Fired for being fat,” “Abercrombie & Fitch case,” “BFOQ restaurant cases,” & “Women only?: The cases of Chariot for Women/Safr & See Jane Go”) directly or indirectly raise the issue of how broadly defined the BFOQ should be. Discuss the key issue raised by the last posting (women-only ride-sharing start-up companies), namely, whether sex (being female) constitutes a BFOQ for the job of driver in these companies. Note that the legality of these companies’ hiring practices is currently unclear.
Present as persuasive a case as you can for both the pro (“Yes, sex does constitute a BFOQ for the job.”) & the con (“No, sex does not constitute a BFOQ for the job.”) side of the issue, and then draw a conclusion about which side has the stronger case. In your arguments, make sure that you rely on court decisions & their rationales in prior BFOQ cases. You are encouraged to solicit opinions from relatives, friends, and acquaintances on whether these companies’ hiring practices are reasonable and should be legal, & compare these opinions with the results of your legal reasoning. You are also encouraged to respond to arguments of other class members, especially those whose conclusions differ from yours.
If you are interested in a detailed legal analysis of the issues involved in this case, see the following law review articles:
Safr-BFOQ-StanfordLaw-Analysis-2017.pdf
download
ChariotForWomen-Safr-SeeJaneGo-BFOQ-LegalAnalysis-Portlandia Ridesharing and Sex Discrimination.pdf
download
2. The EEOC has been active recently in pursuing disparate impact discrimination cases, as illustrated by the Pepsi Beverages case described in the “Definitions of discrimination” slide set & the 2018 case in which Target settled for $3.74 million without admitting any wrongdoing; see:
https://www.reuters.com/article/us-target-lawsuit/target-settles-claims-it-screened-blacks-hispanics-out-of-jobs-idUSKCN1HC2AN
(Links to an external site.)
The concept of disparate impact discrimination has been attacked on a number of grounds. The most basic of these has been that practically any job qualification or hiring criterion will produce a disproportionate effect on one or another protected category (as captured by the saying “You show me a job qualification, & I’ll show you disparate impact.”) The 4/5 rule in particular has been criticized for setting a very low & unreasonable threshold for charging discrimination. In addition, as the Sowell piece suggests, the disparate impact standard requires the employer to take on the burden of proving itself “innocent” (by showing that the hiring criterion or practice in question is job-related or necessary for the business). Discuss the pro & con arguments for using the disparate impact standard for discrimination. Refer to the cases & articles posted, as well as relevant experiences you have had in your own organization. Finally, what are the societal implications of plaintiffs & the EEOC relying heavily on the disparate impact definition of discrimination?
ChariotForWomen-Safr-SeeJaneGo-BFOQ-LegalAnalysis-Portlandia Ridesharing and Sex Discrimination.pdf
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