Friday, June 19, 2020
Craig Senn (Loyola Los Angeles) has just posted on SSRN his article Accommodating Good-Faith Employers in Title VII Disparate Impact Cases (94 Tulane L. Rev. forthcoming fall 2020). Here's the abstract:
This article argues that good-faith employers who adopt honest and reasonable job policies or criteria should be more broadly accommodated in Title VII disparate impact cases. These cases arise under Title VII (and the ADEA and ADA) when an employer’s facially neutral job policy or criterion inadvertently but disproportionately affects individuals based on sex, race, color, national origin, religion, age, or disability.
Unfortunately, our federal employment discrimination laws do not provide comparable defenses or accommodations for good-faith employers in these disparate impact (and related) cases. First, Title VII provides a “business necessity” defense. This complete defense is a narrow accommodation available only for a smaller subset of these good-faith employers – namely, those that can show that their job policy or criterion was related to successful performance of the job.
Next, the ADEA provides a “reasonable factors other than age” defense. This complete defense is a broad accommodation generally available for all good-faith employers that can show that their job policy or criterion stemmed from reasonable, non-age considerations.
Finally, the ADA provides not only a business necessity defense in disparate impact cases but also a supplemental “good-faith efforts” defense in closely related reasonable accommodation cases. This latter, partial defense is another broad accommodation generally available for all good-faith employers that make such efforts to adjust their policy or criterion for (or otherwise accommodate) a disabled individual.
Addressing this unique asymmetry, this article makes two new contributions to existing employment discrimination literature. First, it proposes a partial “Good-Faith Defense” for such employers in Title VII disparate impact cases – a defense that reduces (rather than eliminates) employer liability. Second, this article uses a comprehensive, cross-contextual argument that explores fourteen different examples of good-faith accommodations (by Congress and the Supreme Court) under eight different federal employment laws. Ultimately, these multiple examples evidence a clear legislative and judicial “Good-Faith Accommodation Philosophy” that lies at the heart of the Good-Faith Defense.