Don't forget to plead those disparate impact claims

This case had potential to be interesting, but it fizzles out. Plaintiff was denied a job at Sam's Club after he failed the background check, which showed he was convicted of a drug offense. He claims the job denial violates the antidiscrimination laws because the hiring policy that prohibits the company from hiring certain drug offenses has a disparate impact on certain job applicants. The Court of Appeals rejects the claim.

The case is Karagozian v. Sam's East, Inc., a summary order decided on May 22. Plaintiff is a licensed optician who disclosed his felony conviction on the hiring application. But company policy says you cannot work in the department for which plaintiff was applying. Plaintiff says that EEOC statistics show that people are convicted of drug offenses at different rates, causing a disparate impact upon male job applicants. In a disparate impact case, the plaintiff can win if the facially neutral company policy falls heavily against people based on race or gender and the company cannot show a sufficient business necessity for the policy.

Is disparate impact a forgotten cause of action? It was last in the news a few years ago when Sonia Sotomayor was nominated to the Supreme Court. As a Second Circuit judge, she ruled against New Haven firefighters who had failed an exam that had a disparate impact on racial minorities. The case went to the Supreme Court, which ruled in favor of the firefighters. Before that, in 1990-91, when Congress was trying to amend the Civil Rights Act of 1964, the first President Bush objected to the disparate impact language, claiming it would force employers to adopt a quota policy to avoid getting sued for discrimination. He eventually signed the bill, and disparate impact -- originally created by the Supreme Court in 1971 -- is now codified in the Act.

Plaintiff loses this case because he does not actually bring a disparate impact claim. He brings a disparate treatment claim, which is resolved under a different set of standards and requires proof that the employer intended to discriminate. Under disparate impact, the employer can lose the case even if he did not harbor discriminatory intent.

Plaintiff tries to get around this by arguing that the policy bears no relationship to the position. But "that argument fails because disputes as to the wisdom of the employment policy cannot alone raise an inference of employment discrimination." The Court (Winter, Raggi and Hellerstein [D.J.]) then reminds us (as it often does) that it does not sit as a super-personnel department.