A court recently held that the Cook County Public Defender’s Office’s promotions process did not have an adverse impact on male attorneys. A male attorney in the Office filed a lawsuit against it, claiming that the promotion process favored female attorneys over males. The attorney was one of 38 public defenders who sought a promotion, 20 of whom were male and 18 of whom were female (53% to 47%). However, of the public defenders who received the promotion, just 4 were male and 11 were female (27% to 73%).
The attorney, who was not promoted, claimed that this disparity was evidence that the promotions process had an adverse impact on males, and therefore violated Title VII of the Civil Rights Act of 1964. He claimed this was due to the interview questions and the subjective nature of the way the applicants were rated.
It can be a violation of Title VII when a policy appears neutral but tends to harm one group more than another for no justifiable employment-related reason. For example, a policy that would only allow employees to be promoted if they live in areas that are predominately of one racial group would impose a disparate impact for no employment related purpose, and therefore be a violation of Title VII.
In order to prove that a neutral policy creates a disparate impact in violation of Title VII, it is first necessary to provide statistics showing the disparate impact, and then identify which employment practices create the disparity. To rebut claims that the policies violate Title VII, the employer must then show that the policies are in place for employment-related reasons.
The court found that there was not enough evidence that the Public Defender’s policies imposed a disparate impact on male attorneys. One of the primary reasons for this was the small sample size. The court concluded that 36 attorneys were not a big enough sample to determine whether discrimination actually existed. The decision to promote one or two females over males could lead to a significant change in the ratio of females to males promoted. The court also noted that the attorney failed to offer any other evidence of discrimination against male attorneys besides the statistical disparities.
Statistical disparities alone are generally not enough to prove discrimination. There are a number of variables that can lead to statistical disparities, only one of which is discrimination. Employers should keep in mind, however, that if they promote employees based on arbitrary or undefined reasons, that could lead to an inference that the employer is engaging in illegal discrimination. Therefore, employers should put in place clearly-defined policies that they use when promoting employees, and keep detailed records of the reasons for promotions.
