PJC Business 2024

PJC 107.6

E MPLOYMENT

QUESTION ______ Has Don Davis refused to adopt an “alternative employment prac tice” to the job requirement inquired about in Question ______ [ dis parate impact question ]? An “alternative employment practice” is an employment practice that serves the employer’s legitimate interest in an equally effective manner, but which does not have a disparate impact on [ name of pro tected group, e.g., women, racial minorities ]. Answer “Yes” or “No.” Answer: _______________ “Disparate impact” was defined by the Supreme Court in Albemarle Paper Co. v. Moody , 422 U.S. 405, 425 (1975). The “significant adverse effect” language origi nated in Connecticut v. Teal , 457 U.S. 440, 448 (1982) (holding that a disparate impact claim under title VII is established when “an employer uses a nonjob-related barrier in order to deny a minority or woman applicant employment or promotion, and that bar rier has a significant adverse effect on minorities or women”). That language has not been expressly used by Texas courts. The Austin court of appeals has described dispa rate impact cases as those that involve facially neutral practices “that operate to exclude a disproportionate percentage of persons in a protected group and cannot be justified by business necessity.” Wal-Mart Stores, Inc. v. Davis , 979 S.W.2d 30, 44 (Tex. App.—Austin 1998, pet. denied) (quoted by Ojo v. Farmers Group, Inc. , 356 S.W.3d 421, 426 (Tex. 2011)). The requirements of business necessity are set forth in Tex. Lab. Code §§ 21.115, 21.122(a)(1). Tex. Lab. Code § 21.122(a)(2) states the bur den of proof with respect to showing an alternative employment practice to be that “in accordance with federal law as that law existed [on] June 4, 1989”—a reference to the 1991 amendments to title VII that codified those burdens following the Supreme Court decision in Wards Cove Packing Co. v. Atonio , 490 U.S. 642 (1989). Therefore, the burden of proof, on a showing of disparate impact, is on the employer to demonstrate that the practice is “job-related” and consistent with business necessity. Dothard , 433 U.S. at 329. The instruction on “job-relatedness” is derived from Albemarle Paper Co. , 422 U.S. at 431 (“[D]iscriminatory tests are impermissible unless shown, by pro fessionally acceptable methods, to be ‘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.’”) (quoting former 29 C.F.R. § 1607.4(c)); Lopez v. City of Lawrence , 823 F.3d 102, 111 (1st Cir. 2016) (employer’s testing stan dard “materially enhance[d] the employer’s ability to pick individuals who are more likely to perform better than those not picked”), cert. denied , 580 U.S. 1117 (2017); 29 C.F.R. § 1607.5(B) (“Evidence of the validity of a test or other selection procedure by a criterion-related validity study should consist of empirical data demonstrating that

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