PJC Business

E MPLOYMENT

PJC 107.6

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). 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 burden 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 refer ence to the 1991 amendments to title VII that codified those burdens following the June 5, 1989, 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 425; Contreras v. City of Los Angeles , 656 F.2d 1267 (9th Cir. 1981); and 29 C.F.R. §1607. See also Tex. Lab. Code §21.115; Davis v. Richmond, Fredericksburg & Potomac Railroad Co. , 803 F.2d 1322, 1327–28 (4th Cir. 1986); EEOC v. Rath Packing Co. Creditors’ Trust , 787 F.2d 318, 328 (8th Cir. 1986). The “alternative employment practice” definition is derived from Watson , 487 U.S. at 998. Disparate impact cases: age. Like race, color, disability, religion, sex, and national origin, age is a protected category under the Texas Labor Code. Tex. Lab. Code §21.051; see also Tex. Lab. Code §21.101. Under federal law, age discrimina tion is governed by the Age Discrimination in Employment Act of 1967 (ADEA) and

311