Introduction
“Networking” is common career jargon among upwardly mobile professionals.[1] The ambiguous catch-all term has come to encompass everything from attending formal seminars, fairs, and panels to informally schmoozing over coffee or drinks—anything that might help cultivate a mutually beneficial professional relationship.[2] The good-old-boys image in the collective American consciousness of vouched-for resumes passing between trusted colleagues, interviews traded to known acquaintances, and employment offers extended to friends-of-friends may not be far off: Surveys suggest most hiring decisions result from in-network referrals.[3] It is no wonder that career advisors routinely drill networking as a necessity, and ambitious job-seekers wisely take advantage of every networking opportunity that comes their way.[4] Yet, the opportunities that come their way, by and large, do not come by chance. Nor are they merely the product of innate ability and hard work. Rather, the employment opportunities that applicants have access to are often directly tied to the socioeconomic make-up of the networks they are born into.[5] American culture may idolize earned success through rugged individualism,[6] but the best evidence suggests that employment opportunities are startlingly unmeritorious: parental income distribution remains the best predictor of where one will end up.[7] Despite Americans’ professed commitment to the ideal of equal opportunity,[8] the majority of career outcomes can largely be explained by the networks that people are born into.[9]
Networking has its historical roots in overtly racist and sexist hiring practices—the type of exclusionary practices that equal employment opportunity laws were created to address.[10] But today, exclusionary networking preferences may continue to dominate for less nefarious reasons: Employers want to hire qualified people they trust, quickly. The potential for unintentional discrimination arises when job candidates that employers are willing to take a chance hiring and investing in are either workers they know—people already in their networks—or people vouched for by other members of their existing network.[11] Because one’s network tends to be composed of people who are demographically similar to oneself,[12] employer reliance on elite networks for job recruitment may unintentionally close off positions to qualified lower-income applicants, women, and applicants of color who have historically been excluded from those networks, ultimately contributing to racial, gendered, and economic homogeneity at the highest levels of government and corporate leadership.[13] Competitive and lucrative fields are still overwhelmingly dominated by well-off white men[14] who benefit most from recruitment practices that privilege candidates with access to established elite networks.[15]
Hiring practices and networking groups that actively promote diversity have helped to broaden access to employment opportunities, but these efforts have not gone far enough. Employers still routinely recruit candidates from elite networks composed mostly of white men.[16] These recruitment practices perpetuate racial, gendered, and economic disparities in employment that have largely gone unaddressed by current equal opportunity law.[17] This Note proposes a reinterpretation of Title VII of the Civil Rights Act of 1964[18] to address this gap in employment law and ultimately reduce employer reliance on networking practices that are unintentionally discriminatory.
This Note is divided into three Parts. Part I reviews the background of Title VII’s disparate impact doctrine, focusing on the doctrine’s application to subjective and implicit forms of employment discrimination.[19] Part II analyzes the successes and failures of disparate impact in remedying unintentional discrimination caused by exclusive networking practices.[20] Guided by congressional legislative history and the U.S. Supreme Court’s interpretation of Title VII’s purpose, Part III proposes a reinterpretation of the statutory requirement that plaintiffs identify the “particular employment practice” alleged to have caused an asserted statistical disparity among similarly qualified members of a protected class,[21] allowing the law to reach lasting barriers to equal employment opportunity perpetuated by exclusive networking practices.[22] Ultimately, this Note concludes that courts should adopt a more lenient standard for the burden on disparate impact plaintiffs challenging networking discrimination to better effect the original purpose of Title VII—broadening access to the American Dream.
I. Background
A. Title VII of the Civil Rights Act of 1964
Congress passed the Civil Rights Act of 1964[23] at the height of the Civil Rights Movement in response to centuries of oppression against African Americans and continuing overt discrimination in public and private life.[24] Title VII of the Act addressed discrimination in employment.[25] Both the legislative history and the text of the statute confirm that its purpose was to end invidious employment discrimination against political minorities in order to remedy their historic exclusion from the workplace and to guarantee equal access to employment opportunities for all Americans.[26] At its core, the law was intended to open doors to the American Dream that had been historically shut to nonwhite Americans.[27] Title VII provides, in relevant part:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.[28]
By its terms, Title VII prevents public and private employers[29] from making employment decisions based on any of the five protected classes: race, color, religion, sex, or national origin.[30] Employers are expressly prohibited from making hiring decisions on the basis of a protected class.[31] To enforce its lofty goal of eradicating employment discrimination, Congress created the Equal Employment Opportunity Commission (EEOC)—which it empowered to investigate complaints of discrimination and to settle charges or bring lawsuits on behalf of victims[32]—and it also provided a private cause of action to individual victims of discrimination.[33]
Title VII’s plain language bars employers from intentionally making adverse employment decisions based on one of the protected classes, known as disparate treatment,[34] but the text—as originally enacted—was less clear on whether employers were prohibited from making ostensibly neutral employment decisions not explicitly or intentionally based on a protected class, but which tended to have a discriminatory effect, or disparate impact, on members of a particular protected class.[35] In the first few years after Title VII’s enactment, it was an open question whether a plaintiff could challenge a facially neutral employment practice that nevertheless had a disproportionate effect of discriminating against members of a protected class.
B. Griggs v. Duke Power Co.: The Birth of Disparate Impact
In 1971, in its first decision interpreting Title VII, the Supreme Court answered that question in the affirmative, giving birth to a new doctrine of employment discrimination claims known as disparate impact.[36] In Griggs v. Duke Power Co.,[37] black powerplant employees challenged a company’s department assignment practices, which required applicants for a department transfer to have a high school degree or pass a general intelligence test—a requirement that was shown to disproportionately exclude black employees at a greater rate than white employees.[38] Despite finding no intentional discrimination against the black employees, a unanimous Court sustained the Title VII challenge because the degree requirement had a disparate effect on black employees.[39] The Court explained that, because Title VII was intended to remedy the “consequences of employment practices, not simply the motivation,”[40] Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”[41] Griggs introduced a burden-shifting scheme in which employers could rebut a plaintiff’s disparate impact claim by showing that the employment practice causing the disparate result was justified by a “business necessity” sufficiently related to job performance.[42] After Griggs, members of a protected class could bring Title VII claims challenging employer practices that, despite not intentionally discriminating on an unlawful basis, nonetheless resulted in a discriminatory disparate impact on members of a protected class.[43]
This new disparate impact theory gave plaintiffs two significant advantages in pleading employment discrimination under Title VII.[44] First, disparate impact addressed a common evidentiary problem in which plaintiffs who had in fact been intentionally discriminated against could not plead sufficient facts to establish an employer’s subjective discriminatory state of mind.[45] Second, disparate impact significantly expanded Title VII’s reach by allowing plaintiffs to seek relief for employment practices which were not in fact intended to discriminate on the basis of a protected class but which nevertheless had the effect of doing so.[46]
C. Burden-Shifting for Disparate Impact Claims
In the years after Griggs, the Court further refined its burden-shifting scheme for disparate impact claims.[47] The Court held in Albemarle Paper Co. v. Moody[48] that to state a prima facie Title VII claim alleging disparate impact discrimination, a plaintiff needed to show that an employer’s policy or practice created a statistical disparity between currently employed members of a given protected class and members of the same class among the qualified pool of applicants.[49] Given this prima facie showing of a disparate impact, the burden would then shift to the employer to justify the statistical disparity created by the facially neutral practice in question by demonstrating that the practice was necessary to the position and had “a manifest relationship to the employment in question.”[50] The ultimate burden of persuasion would remain with the plaintiff to suggest a non-discriminatory alternative practice that could similarly achieve the employer’s goals, thereby demonstrating that the employer’s business justification was merely a pretext for its discriminatory practice.[51] This three-part burden-shifting approach dominated disparate impact employer discrimination cases for the better part of two decades.[52]
D. Wards Cove Packing Co. v. Atonio: Easing the Burden on Employers & Imposing a Heightened Causation Requirement on Plaintiffs
In 1989, the Supreme Court severely restricted the role of disparate impact in remedying employment discrimination in Wards Cove Packing Co. v. Atonio.[53] The case involved a disparate impact challenge by a group of nonwhite employees to two Alaskan salmon canneries’ hiring and promotion practices that had the effect of hiring predominantly white employees to fill higher-paying “noncannery” jobs and largely relegated nonwhite employees to unskilled “cannery” jobs.[54] The court of appeals below had upheld the nonwhite cannery workers’ Title VII disparate impact claims based on statistical evidence showing that a higher percentage of white employees were employed in the coveted noncannery jobs and a higher percentage of nonwhites were employed in the cannery jobs, but no evidence attributed the discrepancy to any particular hiring practice.[55] In a five-to-four decision written by Justice Byron White, the Court reversed.[56] It held that, although statistical evidence could theoretically make out a prima facie disparate impact claim, the relevant comparison in such statistical disparate impact cases should not be between different classes of employees—here, the white employees and the nonwhite employees—but instead should be a comparison between the percentage of positions actually held by members of a protected class and the percentage of qualified applications by members of that same class.[57]
Crucially, the Court went further. It considerably altered the “business necessity” standard that was originally introduced in Griggs, which had required an employer seeking to justify its discriminatory practice to demonstrate the practice was strictly a job-related necessity.[58] Introducing a new, less-demanding standard for employers seeking to justify unintentional discrimination, the Court held that employers whose practices were found to have a discriminatory effect need only show a “legitimate business justification” to meet their burden.[59]
Justice Harry Blackmun dissented, arguing the majority’s new standard for an employer’s justification would drastically weaken Title VII’s ability to combat employment discrimination.[60] Justice John Paul Stevens’s dissent echoed similar concerns that the majority’s new test undermined the purpose of Title VII by equating the standard needed to justify statistical discrimination with that required to justify intentional discrimination.[61] By dramatically reducing the burden in disparate impact claims on employers to justify discriminatory practices, the Wards Cove decision undermined nearly two decades of settled employment law.
In addition to reducing the burden on employers, Wards Cove also introduced a second Title VII reform that significantly heightened the prima facie burden on disparate impact plaintiffs.[62] The Court held that, under a disparate impact theory, a plaintiff may not base her prima facie case solely on evidence of a “bottom line” disparate impact on members of a protected class.[63] Now, she must also demonstrate that the disparity was caused by a “specific or particular employment practice.”[64] For the Wards Cove plaintiffs, this meant that even though they had alleged that several specific practices used by the canneries (including nepotism, separate hiring channels, and rehiring preferences) caused the statistical disparity between white and nonwhite workers,[65] the plaintiffs had not “specifically show[n] that each challenged practice ha[d] a significantly disparate impact.”[66] Mere allegations that the identified practices caused the disparity were not sufficient.[67] Wards Cove required that disparate impact plaintiffs plead sufficient evidence to demonstrate that a “particular employment practice” caused the complained-of disparity.[68] Between this new pleading requirement on plaintiffs and the reduced burden on employers seeking to justify their practices, Wards Cove significantly reshaped disparate impact doctrine in favor of employers.
E. Congress Rejects Wards Cove‘s Business Justification for Employers but Codifies Its “Particular Employment Practice” for Plaintiffs
In 1991, Congress responded.[69] It passed an amendment to Title VII (1991 Amendment) expressly rejecting the weakened Wards Cove standard for employers’ justification in disparate impact cases and codifying the business necessity standard originally articulated in Griggs and later refined in Albemarle.[70] Not only did Congress reject the Court’s weaker standard for an employer’s justification, but the 1991 Amendment also marked the first time since the Court’s landmark 1971 decision in Griggs—which originally recognized a right of relief for plaintiffs facing unintentional discrimination—that Congress formally endorsed the disparate impact theory.[71] After the 1991 Amendment, there could be no doubt that Congress unequivocally intended Title VII to provide a remedy for unintentional employment discrimination having a disparate impact on members of a protected class.[72]
The effect of the 1991 Amendment was largely to restore the disparate impact doctrine to its original pre-Wards Cove state, as it had been interpreted by the Supreme Court.[73] The 1991 Amendment reinstated the burden-shifting standard applicable to offending employers for justifying a statistically discriminatory practice once a plaintiff has made the required prima facie showing.[74] Under the 1991 Amendment, and under current Supreme Court precedent, an employer shown to have a facially neutral policy or practice that has a discriminatory effect must justify its discriminatory practice by demonstrating that it is “job-related . . . and consistent with business necessity.”[75] Once an employer has sufficiently justified its practice as a genuine business necessity, a successful plaintiff must offer an available alternative practice that would not cause the disparate impact but that would still meet the employer’s legitimate business needs.[76] Griggs and its progeny remain the controlling precedent regarding an employer’s burden in Title VII disparate impact claims.[77]
Although by amending Title VII Congress was clear in its restoration of the Griggs burden-shifting standards, the 1991 Amendment did little to resolve ambiguity for the courts in how to apply these standards.[78] Congress did not define what constitutes a job-related business necessity sufficient to justify an employer’s discriminatory practice.[79] Nor did it expand on the meaning of an “alternate employment practice” offered by a plaintiff to overcome a defendant-employer’s justification.[80]
While the 1991 Amendment overturned the most radical feature of Wards Cove, it codified the decision’s “particular employment practice” requirement for disparate impact plaintiffs.[81] The 1991 Amendment provides:
With respect to demonstrating that a particular employment practice causes a disparate impact . . . the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.[82]
Just as the Court held in Wards Cove, the 1991 Amendment ordinarily requires a disparate impact plaintiff to demonstrate a causal link between the challenged employment practice and the alleged resulting disparate impact.[83] However, the 1991 Amendment also provides an exception that allows for analyzing an employer’s practice as a whole where an employer’s “decisionmaking process[es] are not capable of separation for analysis.”[84] This exception introduces another discretionary element into the disparate impact analysis, as courts are now tasked with determining whether a “particular employment practice” is “capable of separation,” before determining whether there is a need for particularized causation evidence.[85]
F. Subjective Employment Practices & Cronyism
In Watson v. Fort Worth Bank & Trust,[86] the Supreme Court extended Title VII’s disparate impact doctrine to cases involving subjective and discretionary employment practices, as opposed to objective measures such as standardized testing. Watson involved a disparate impact challenge by a black bank teller who was repeatedly denied promotions for positions for which she was qualified that were instead given to white employees.[87] Rather than evaluating candidates for promotion based on a formal set of performance criteria, the bank relied on its supervisors’ subjective judgment about employees in making promotion decisions.[88] Despite the case not involving objectively comparable criteria, the Court held that disparate impact analysis was appropriate because subjective employer decision-making can have the same discriminatory effects as intentional discrimination.[89] Watson recognized that disparate impact is not limited to cases involving standardized tests or easily quantifiable employer practices.[90] Plaintiffs may challenge even subjective employment practices that disproportionately impact members of a protected class.[91]
One particularly difficult subjective employment practice in Title VII litigation is “cronyism.”[92] Cronyism generally describes an employment decision, often political in nature, made on the basis of a social relationship rather than professional merit.[93] Cronyism that produces a discriminatory effect on a protected class has sometimes been held to be actionable under a disparate impact theory.[94] For example, in Hagan v. City of New York, a black attorney brought a disparate impact claim against the City alleging inferior terms of employment in the form of less staffing and compensation based on her supervisor’s favoritism toward white employees.[95] The court held that cronyism by an employer is a facially neutral practice that can create an actionable disparate impact on black employees in the terms and conditions of their employment.[96] Thus, Title VII may prohibit employer favoritism toward a known social group that operates to systematically exclude members of a protected class from employment opportunities.[97]
II. Analysis
A. The Continuing Need for Disparate Impact Liability
Since Griggs first interpreted Title VII in 1971, the Supreme Court has repeatedly reaffirmed that Congress’s purpose in passing Title VII was to eliminate barriers to equal employment opportunities for political minorities.[98] The disparate impact doctrine provides an essential tool for effecting that purpose.[99] Disparate impact gives members of a protected class a civil remedy for employment discrimination that takes the form of implicit cognitive bias or unintentional structural discrimination.[100] Scholars and courts continue to recognize that racial and gender-based discrimination in employment persists more commonly today not as overt intentional discrimination but instead as subconscious biases and structural systems that have the effect of favoring men and white people and marginalizing women and people of color.[101] Indeed, cronyism cases like Hagan, in which employers favor members of their homogenous social networks to the unintentional exclusion of candidates of color, demonstrate the continuing need for civil liability premised on discriminatory effect rather than intent.[102] If Title VII is to remain an effective legal tool to combat modern employment discrimination, plaintiffs must continue to have access to a disparate impact theory that does not require proof of an invidious intent.
B. The “Particular Employment Practice” Requirement Unfairly Burdens Disparate Impact Plaintiffs
Although, in theory, disparate impact provides a crucial remedy to unintentional employment discrimination, in practice, the modern doctrine has not been so successful.[103] Scholars have pointed to many explanations for the doctrine’s failure to live up to its potential, including its ambiguous and discretionary burden-shifting scheme,[104] procedural barriers to bringing class actions,[105] and the plaintiff bar’s general skepticism toward relying on a theory that does not carry the moral thrust of demonstrating an employer’s intentional prejudice.[106] All of these reasons have likely contributed to the relative lag in disparate impact litigation; however, Professor Tristin Green and others have presented the most compelling explanation for why victims of implicit and structural discrimination have had little success with disparate impact.[107] They argue that plaintiffs are often unable to sufficiently trace such structural and less overt forms of discrimination to an identifiable offending employment practice, and are thus unable to satisfy the “particular employment practice” element of a prima facie case[108]—a requirement first introduced in Wards Cove[109] and since codified by the 1991 Amendment.[110] Though Title VII’s “particular employment practice” requirement does not obviously place a heightened causation requirement on plaintiffs,[111] in practice, courts have often interpreted the requirement against disparate impact plaintiffs alleging statistical disparities in hiring caused by unintentional forms of discrimination.[112] This particularity requirement thus places an often insurmountable burden on disparate impact plaintiffs to demonstrate that implicit discrimination by an employer has caused an empirical disparity disadvantaging a protected class.[113]
Title VII’s particularity requirement is especially burdensome for disparate impact plaintiffs alleging employment discrimination caused by subjective employment practices such as discriminatory cronyism.[114] For example, in Attenborough v. Construction & General Building Laborers’ Local 79,[115] black union members brought a disparate impact claim against a predominantly white-led construction union that assigned jobs based on a practice of cronyism, giving lucrative contracts to white relatives and friends without regard to their relevant qualifications or construction experience.[116] Despite accepting the plaintiffs’ evidence of rampant cronyism favoring white social friends, the court held they had failed to demonstrate that it was the employer’s practice of cronyism that caused the disparate impact on black union workers.[117] For the Attenborough court, merely pointing to cronyism as a plausible explanation for the disparity was not sufficient to meet Title VII’s particularity requirement.[118] The court hypothesized that the union’s cronyism had also disadvantaged white non-cronies, and it viewed such a possibility as dispositive that cronyism alone could not have caused the discriminatory disparity.[119] Because of the subjective and unquantifiable nature of the employer’s cronyism, the plaintiffs were unable to overcome the high evidentiary burden and quasi-causation nexus that the court imputed to Title VII’s particularity requirement.[120]
Attenborough demonstrates the challenge that strict construction of the particularity requirement creates for disparate impact claims. Strict application of the particularity requirement places disparate impact plaintiffs in a catch-22: Victims of unintentional employment discrimination cannot resort to disparate treatment and so must advance on a disparate impact theory,[121] but disparate impact’s particularity requirement has been interpreted to effectively bar suits based on pervasive but hard-to-isolate structural discrimination.[122] In this way, the particularity requirement, as a lasting vestige of the controversial Wards Cove decision,[123] continues to thwart effective use of the disparate impact doctrine to combat modern employment discrimination.[124]
C. Disparate Impact by Networking Parallels Cronyism
Cronyism cases such as Hagan and Attenborough demonstrate disparate impact’s potential use in addressing unintentional discrimination caused by exclusive networking practices. Whereas cronyism generally involves an employer disregarding meritorious applicants to reward unqualified social friends with jobs,[125] networking involves an employer using professional connections to find qualified candidates within a smaller circle of known recruiters or colleagues.[126] Employment-by-networking may generally be more socially acceptable because it is premised on professional relationships that are at least ostensibly built on recognized merit. Yet, when both cronyism-based and networking-based relationships are built from the same types of demographically homogenous networks, they lead to the same discriminatory outcomes.[127] Whether members of a protected class are continually excluded from employment opportunities because of blatant nepotism or because of an unintentional reliance on exclusive hiring networks, the disparate effect is the same: In-network groups are rewarded with jobs and out-of-network groups are excluded.[128] When such employer practices produce quantitative disparities between in-network majority groups, such as white men, and out-of-network members of a protected class—whether intentional or not—networking violates Title VII.[129] Exclusive networking may produce qualified candidates who are hired based on merit, but when it continually excludes qualified members of protected classes, it produces the same discriminatory barriers to employment opportunities that Congress intended Title VII to eliminate.[130]
Title VII’s disparate treatment doctrine, which relies on proving intentional discrimination, is ill-suited to address discriminatory networking.[131] Under a disparate treatment theory, a plaintiff who has been excluded from a job by an employer’s unintentional-yet-discriminatory hiring practice cannot succeed because she would be unable to demonstrate that the employer had an invidious state of mind. The disparate impact doctrine provides victims of unintentional networking discrimination with a potential remedy. Yet, it presents the same challenge facing disparate impact plaintiffs alleging cronyism—isolating a particular moment of discrimination sufficient to satisfy Title VII’s particularity requirement.
The Seventh Circuit’s decision in EEOC v. Chicago Miniature Lamp Works[132] demonstrates the difficulty facing disparate impact plaintiffs challenging exclusive hiring practices. In Chicago Miniature Lamp Works, the EEOC brought a Title VII claim on behalf of black applicants who had been excluded from factory worker positions by a lamp manufacturing company that relied on its current employees—who were predominantly white—to recruit friends and family through word-of-mouth hiring.[133] After a bench trial, the district court below had found in favor of the plaintiff on a disparate impact theory that alleged the employer’s exclusive reliance on word-of-mouth referrals in entry-level hiring caused a disproportionate effect on the otherwise qualified black applicants.[134] In particular, the district court credited the plaintiff’s statistical evidence that showed a vast racial disparity in hiring: Despite black applicants making up over one-third of the eligible applicant pool in Chicago, black workers filled just six percent of the entry-level positions.[135]
Despite this disparity, the Seventh Circuit reversed the district court and held that it had “erred in considering passive reliance on employee word-of-mouth recruiting as a particular employment practice for the purposes of disparate impact.”[136] The court characterized the plaintiff’s claims of exclusive reliance on word-of-mouth referrals as a challenge to the employer’s “overall hiring procedure,” which could not meet the plaintiff’s burden to attribute the statistical disparity to a particular employer practice.[137] Thus, the Seventh Circuit’s analysis renders the disparate impact remedy unavailable for out-of-network applicants who are overwhelmingly excluded by restrictive hiring practices that favor in-network applicants because they cannot isolate a more specific instance of employer discrimination beyond the general reliance on non-public word-of-mouth hiring.[138] Given Title VII plaintiffs’ general evidentiary problems of asymmetric access to information and the inherently inseverable nature of professional hiring practices, the Seventh Circuit’s approach essentially closes the door to disparate impact claims based on unintentional networking discrimination.
In contrast to the Seventh Circuit’s restrictive approach, two circuit court decisions suggest disparate impact claims based on exclusive networking practices may be actionable if plaintiffs can overcome the particularity challenge.[139] In United States v. Brennan,[140] the Second Circuit shed light on how a plaintiff may make out a prima facie claim based on a theory of disparate impact caused by discriminatory exclusive hiring practices.[141] In Brennan, the United States brought a disparate impact claim against the New York City Board of Education claiming the City’s employment selection practices for custodians in its public schools disproportionately discriminated against people of color and women.[142] The City’s hiring process required applicants to pass a civil service exam, submit papers demonstrating they meet the minimum number of years of experience, pass an oral practice exam, and then wait for the possibility of being selected for an interview.[143] The federal government submitted a report by a labor economist that showed a statistical disparity between the number of black, Hispanic, Asian, and female applicants who were allowed to take the three pre-interview exams and the number expected based on the qualified applicant pool.[144] The number of members of the protected classes who were given the exams was significantly less than those qualified.[145] The government alleged that the cause of this disparity was the City’s limited advertising for the positions and its exclusive use of word-of-mouth referrals in recruiting candidates for the open positions—practices that limited applicants to those already within its known network.[146]
Without squarely addressing the “particular employment practice” problem, the Second Circuit held that the plaintiffs satisfied their burden in making out a prima facie disparate impact claim based on the City’s exclusive word-of-mouth recruitment practice.[147] The court implicitly accepted that exclusive hiring practices such as limited advertising and non-public job postings alleged to have caused a disparate impact could satisfy Title VII’s “particular employment practice” requirement.[148] To make out a prima facie case for a disparate impact claim based on discriminatory hiring practices, the court held it was enough to allege that an employer had a specific hiring practice that might plausibly have caused the demonstrated disparity between employees actually selected and qualified applicants of the same protected class.[149] For the Brennan court, exclusive word-of-mouth networking practices did not fail Title VII’s particularity requirement.[150]
The Fourth Circuit has similarly held that exclusive hiring practices may be actionable as disparate impact claims.[151] In Thomas v. Washington County School Board, a black woman submitted an application for a public teaching position, but her application was never considered.[152] Instead, the county hired a white applicant who heard of the opening through word-of-mouth networking.[153] The Fourth Circuit held that because the school board’s workforce was predominantly white, its exclusive reliance on word-of-mouth hiring operated to disproportionately exclude black applicants from consideration.[154] The court ordered an injunction preventing the school board from exclusively relying on word-of-mouth networking and requiring the board to publicly advertise all future job openings.[155] Just as in the Second Circuit’s analysis, the Fourth Circuit found that exclusive in-network referrals alleged to have caused a disparate impact are employment practices that violate Title VII.[156]
Brennan and Thomas demonstrate the potential for the disparate impact doctrine to address not only cronyism cases in which social group favoritism excludes out-of-network members of a protected class, but also less obvious discrimination resulting from exclusive hiring among homogenous professional networks, which nonetheless similarly perpetuate structural disparities in employment opportunities.[157] Brennan and Thomas represent important applications of the disparate impact theory because while employer reliance on exclusive networking channels in hiring can create the same type of structural discrimination as blatant cronyism or intentional discrimination,[158] professional networking to fill positions is more widely accepted and practiced due to its efficiency and ostensible reliance on merit.[159]
III. Proposal: A Less Particular ‘Particular Employment Practice’
Given the pervasive effect of structural discrimination created by employer reliance on exclusive hiring networks that largely benefit white and male job applicants,[160] and the inability of current disparate impact doctrine to effectively deal with this less obvious form of discrimination,[161] courts should reinterpret Title VII’s “particular employment practice” requirement to reduce the insurmountable burden many courts have imposed on disparate impact plaintiffs alleging subjective networking discrimination, in an effort to more closely align the doctrine with Title VII’s well-recognized purpose to eradicate discrimination in employment.[162]
Legislative history and the statute’s plain language indicate Title VII’s purpose is to eliminate not only intentional forms of employment discrimination but also the effects of unintentional, structural discrimination against political minorities.[163] Moreover, Congress’ 1991 Amendment to Title VII, which codified the Supreme Court’s landmark disparate impact decision in Griggs, evinces an intent to provide plaintiffs facing unintentional discrimination with a workable civil remedy.[164] Today, implicit bias and unintentional discrimination in hiring practices are the predominant modes of employment discrimination;[165] yet, disparate impact doctrine largely does not recognize this reality.[166] A less demanding particularity requirement would give victims of unintentional networking discrimination an effective tool for demonstrating that an unlawful disparate impact was caused by a subjective and more generalized employer practice. Under such a standard, female job applicants and applicants of color who are routinely excluded because of employer reliance on male- and white-dominated hiring networks would be able to first demonstrate a statistical disparate impact and then successfully allege that the disparity was caused by the “particular employment practice” of exclusionary networking.
Professor Michelle Travis has argued for a similar reconsideration of the particularity requirement in the context of gender discrimination.[167] She argues that by viewing structural barriers to equality in the workplace as default “non-practice[s],” courts eliminate the ability of “women with caregiving responsibilities” to bring disparate impact claims for practices that maintain a discriminatory status quo, such as prohibitions against breastfeeding in the workplace and inadequate maternity leave.[168] As Professor Travis points out, courts have used the particularity requirement to thwart challenges to not only discriminatory gender norms but also to default hiring practices such as word-of-mouth recruitment.[169] Building on Professor Travis’ reasoning, this Proposal seeks to apply her framework to cases involving structural discrimination in the form of exclusive networking, and to demonstrate how a plaintiff alleging networking discrimination would establish a prima facie disparate impact claim.
Although cases like Brennan and Thomas show that some courts have been willing to credit plaintiffs’ allegations that exclusionary recruitment practices can cause a disparate impact,[170] the “particular employment practice” requirement continues to prohibit plausible disparate impact claims in many cases where objective and easily-quantifiable employment measurements are unavailable.[171] Guided by decisions like Brennan and Thomas, federal courts should uniformly adopt a relaxed particularity standard that would credit allegations of networking discrimination in hiring. A more lenient particularity requirement would still require plaintiffs to plausibly allege a causal relationship between a “particular employment practice” and a resulting statistical disparity; however, rather than requiring detailed specificity regarding the precise mechanics of an employer’s hiring practices or unattainable empirical evidence that a given practice definitively caused the disparity, this less-demanding standard would allow plaintiffs to plead factual allegations that an exclusionary hiring practice exists, combined with social science research suggesting a causal relationship between such practices and resulting structural discrimination, and would permit the inference of a causal relationship in the case-in-chief sufficient to satisfy the plaintiffs’ prima facie burden.[172]
The plaintiff’s prima facie burden would otherwise remain the same. Thus, a prima facie disparate impact claim of networking discrimination would require a plaintiff to plead: (1) an employer uses a “particular employment practice” in hiring, such as word-of-mouth recruitment, (2) a statistical disparity exists between qualified applicants of a protected class and those actually hired, and (3) available social science or historical evidence plausibly suggests the identified practice caused the statistical disparity.[173] Once the plaintiff has satisfied her burden, the burden would then shift, as it does under current doctrine, to the employer to demonstrate its practice is job-related and consistent with business necessity.[174] If an employer is able to meet its business-justification burden, the ultimate burden would lie with the plaintiff to offer an acceptable, non-discriminatory alternate practice that the employer refuses to adopt.[175]
The key difference between the current doctrine and this approach is that plaintiffs facing structural discrimination from exclusive hiring practices that consistently favor majority groups would be able to overcome the particularity requirement by pointing to general networking practices such as limited word-of-mouth recruiting or reliance on a small circle of feeder recruiters, in conjunction with reliable but generalized research from which a court could draw the inference of a causal connection. Thus, this approach would leave intact the current disparate impact burden-shifting scheme and would merely relax the plaintiff’s prima facie burden to “demonstrate[] that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin . . . .”[176] Allegations of persistent reliance on exclusive in-network referrals would be sufficient to meet the particularity requirement.
An alternate logical route courts might take to reach the same relaxed standard might be to interpret all disparate impact claims for discriminatory networking as “not capable of separation”[177] for purposes of isolating a “particular employment practice,” thus categorically placing such claims within Title VII’s built-in statutory exception to the particularity requirement.[178] Given the inherent indivisibility of complex professional hiring practices that can involve several rounds of candidate reviews and the application of various selection criteria, courts might credit allegations of networking discrimination as per se incapable of separation and thus statutorily exempt from the particularity requirement.[179] Under either approach, relaxation of the particularity requirement in networking discrimination cases is essential to the ability of Title VII to address unintentional structural discrimination in hiring.
The primary argument against relaxing the particularity requirement in networking discrimination cases is the assumption that it would place an overwhelming burden on private employers to internally validate their hiring practices or else face exorbitant litigation and liability costs. This concern is overblown. As Professor Travis argues, a relaxed particularity approach would not alter the existing business necessity justification,[180] which allows employers to justify a discriminatory practice after the plaintiff has satisfied her burden so long as the employer can demonstrate that the practice is “job related for the position in question and consistent with business necessity.”[181] The business necessity exception provides private employers with a broad defense in many cases.[182] If a challenged networking practice was irreplaceable and necessary to an employer’s recruitment scheme, the employer would have the opportunity to demonstrate a business necessity once the burden has shifted. Relaxing the particularity requirement only lessens the plaintiff’s prima facie burden and leaves employers with the same robust business necessity defense.[183]
A related objection is that relaxing the particularity requirement to allow disparate impact claims for networking discrimination will require professional employers to expend resources in anticipation of litigation to ensure against potential future Title VII claims.[184] Employers who rely on exclusionary practices like word-of-mouth recruiting would likely be incentivized by this model to review their practices for compliance; however, the EEOC’s Uniform Guidelines on Employee Selection Procedures[185] offers a guide to how employers can conform their hiring practices to the law and encourages employers to police themselves by “validating” that their practices do not create a disparate impact on members of a protected class.[186] Though the guidelines are not binding for recruitment procedures[187] and would not be mandatory to avoid networking discrimination claims, they nonetheless provide employers with detailed compliance guidelines through the use of criterion-related, content, or construct validity studies.[188] Though conducting validity studies may place some new costs on employers, their availability would effectively reduce ambiguity in Title VII compliance.[189]
Perhaps a more fundamental response to the employer-burden critique is that cases in which employers are unable to justify their unintentionally discriminatory hiring practices—that is, cases in which the discrimination is devoid of any business utility—are precisely the type of structural discrimination cases that disparate impact theory was intended to address.[190] The original impetus for Title VII was to eliminate discriminatory practices by white-dominated employers that excluded black Americans from the workplace.[191] Since Griggs, the Court has frequently reiterated its landmark declaration that Title VII was intended to remedy “practices that are fair in form, but discriminatory in operation.”[192] Congress’s enactment of the 1991 Amendment codifying Griggs’s disparate impact theory[193] removed all doubt that Congress intended Title VII to apply to victims of unintentional discrimination.[194]
Moreover, the particularity requirement was never intended to limit the theory’s effectiveness. As Professors Travis and Hebert point out, the legislative history of the 1991 Amendment that codified the particularity requirement shows it was not intended to heighten the level of specificity with which a plaintiff must identify a discriminatory practice, but instead merely codified the less controversial aspect of the Court’s holding in Wards Cove that statistical discrimination alone is insufficient to sustain a disparate impact claim.[195] Put another way, Congress only intended that plaintiffs identify some employer practice alleged to have caused the disparity.[196]
Under this historical analysis of the purpose of Title VII, employers should be the ones to bear the economic costs of correcting the negative externalities they produce in society—here, white- and male-dominated professions—through their unintentional or negligent networking discrimination.[197] Disparate impact theory rests on the normative ground that it is simply not enough for employers to avoid intentional discrimination to escape liability under Title VII.[198] Congress, via Title VII, has placed a duty on private employers to affirmatively avoid contributing to the systemic exclusion of people of color and women from the workplace.[199] Unintentional discrimination caused by exclusive networking should be treated no differently.
Conclusion
Seemingly innocuous networking practices can create the same discriminatory effects as intentional discrimination or other forms of structural barriers to equal employment opportunities. While Title VII and societal norms have effectively reduced overt employment discrimination, employment law has been largely unable to address these subtler forms of structural discrimination. Disparate impact theory could provide aggrieved plaintiffs with an effective remedy if courts recognized networking discrimination as an actionable employment practice. Courts should uniformly adopt a relaxed particularity standard to allow disparate impact claims based on exclusive recruitment practices to more faithfully align the doctrine with the original purpose of Title VII to eliminate barriers to equal employment opportunities and broaden access to the American Dream. Guided by this lofty goal and confronted with empirical social science evidence of the disparate impact that in-network hiring can have on job candidates, courts should reinterpret Title VII’s particularity requirement to allow disparate impact challenges based on networking discrimination. By relaxing the particularity burden on plaintiffs and crediting modern social science, Title VII disparate impact litigation could become a much more effective tool for combating modern forms of employment discrimination.
Citations
[1] See, e.g., Tiziana Casciaro et al., Learn to Love Networking, Harv. Bus. Rev., May 2016, at 104, https://hbr.org/2016/05/learn-to-love-networking [https://perma.cc/7ERA-SNKF] (“[N]etworking is a necessity.”); Rich Grant, The Value of Professional Networking for Career Success, Southern N.H.U. (May 19, 2016), https://www.snhu.edu/about-us/news-and-events/2016/05/the-value-of-professional-networking-for-career-success [https://perma.cc/K4UX-62MV] (“[A]s long as you have a pulse, continue to network.”); Networking: Talk to Anyone and Everyone, B.U., https://www.bu.edu/careers/networking-interviews/networking-talk-to-anyone-and-everyone [https://perma.cc/YK6N-BG7E] (“Some career experts peg the number of jobs found through networking at 70 to 90 percent.”); Reference Manual: Networking, Benjamin N. Cardozo Sch. L., https://cardozo.yu.edu/sites/default/files/08%20Networking.pdf [https://perma.cc/T8Q4-VJTY] (“Networking is believed to be the way most jobs are filled.”).
[2] See Networking, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/networking [https://perma.cc/ABD2-WMN4]) (defining “networking” as “the cultivation of productive relationships for employment or business”); Reference Manual: Networking, supra note 1.
[3] Jobvite, The Jobvite Recruiter Nation Survey 7 (2015), https://www.jobvite.com/wp-content/uploads/2015/09/jobvite_recruiter_nation_2015.pdf [https:// perma.cc/5ZTM-CENW] (“78% of recruiters find their best quality candidates through referrals.”); Lou Adler, New Survey Reveals 85% of All Jobs Are Filled Via Networking, LinkedIn (Feb. 29, 2016), https://www.linkedin.com/pulse/new-survey-reveals-85-all-jobs-filled-via-networking-lou-adler [https://perma.cc/YM3U-XGEQ] (“85% of critical jobs are filled via networking of some sort.”); Monika Morrow, Networking, Not Internet Cruising, Still Lands Most Jobs for Those in Career Transition, Right Mgmt. (May 8, 2013), https://www.right.com/wps/wcm/connect/right-us-en/home/thoughtwire/categories/talent-work/networking-not-internet-cruising-still-lands-most-jobs-for-those-in-career-transition [https://perma.cc/7U3C-LCT5] (“For the fifth year in a row person-to-person networking proves to be the single most effective way of finding a new job, according to a study of more than 46,000 individuals who received outplacement services from Right Management.”); see also James D. Montgomery, Social Networks and Labor-Market Outcomes: Toward an Economic Analysis, 81 Am. Econ. Rev. 1408, 1408 (1991) (“[A]pproximately 50 percent of all workers currently employed found their jobs through friends and relatives . . . [and] over 51 percent of jobs were filled through referral.”); Wendy Kaufman, A Successful Job Search: It’s All About Networking, NPR (Feb. 3, 2011, 3:43 PM), https://www.npr.org/2011/02/08/133474431/a-successful-job-search-its-all-about-networking [https://perma.cc/J6E8-V8UZ] (quoting the president of Career Horizons as stating that because “[a]t least 70 percent, if not 80 percent, of jobs are not published, . . . the vast majority of hiring is friends and acquaintances hiring other trusted friends and acquaintances”).
[4] See sources cited supra note 1.
[5] See Michael Greenstone et al., The Hamilton Project, Thirteen Economic Facts About Social Mobility and the Role of Education 6 (2013) (“[A] child’s family income plays a dominant role in determining his or her future income . . . . [C]hildren of well-off families are disproportionately likely to stay well off and children of poor families are very likely to remain poor. For example, a child born to parents with income in the lowest quintile is more than ten times more likely to end up in the lowest quintile than the highest as an adult (43 percent versus 4 percent). And, a child born to parents in the highest quintile is five times more likely to end up in the highest quintile than the lowest (40 percent versus 8 percent).”); Pablo A. Mitnik & David B. Grusky, The Pew Charitable Tr. & Russell Sage Found., Economic Mobility in the United States 1, 9 (2015), https://web.stanford.edu/~pmitnik/EconomicMobilityintheUnitedStates.pdf [https://perma.cc/8RGC-WXBT] (“Approximately half of parental income advantages are passed on to children. . . . [A]pproximately two-thirds of parental income differences within [the 50th and 90th income percentiles] of the income distribution persist into the next generation. . . . The analysis makes it clear that children born into different economic circumstances can expect very distinct economic futures. The degree to which family advantage is transmitted suggests that opportunities for economic success are very unequally distributed.”); Raj Chetty et al., Where is the Land of Opportunity? The Geography of Intergenerational Mobility in the United States, 129 Q.J. Econ. 1553, 1555 (2014) (“A 10 percentile point increase in parent rank is associated with a 3.41 percentile increase in a child’s income rank on average.”); Raj Chetty et al., Is the United States Still a Land of Opportunity? Recent Trends in Intergenerational Mobility 1 (Nat’l Bureau of Econ. Research, Working Paper No. 19844, 2014), https://www.nber.org/papers/w19844.pdf [https://perma.cc/M9MC-CPAF]; Raj Chetty et al., Race and Economic Opportunity in the United States: An Intergenerational Perspective (Nat’l Bureau of Econ. Research, Working Paper No. 24441, 2019) (unpaginated abstract), https://www.nber.org/papers/w24441.pdf [https://perma.cc/AS4C-2SAJ] (“[B]lack Americans have substantially lower rates of upward mobility and higher rates of downward mobility than whites, leading to large income disparities that persist across generations.”); Julia B. Isaacs, Econ. Mobility Project, Economic Mobility of Families Across Generations (2007), https://www.brookings.edu/research/economic-mobility-of-families-across-generations [https://perma.cc/YL4C-R95Q]; see also Alan B. Krueger, The Great Utility of the Great Gatsby Curve, Brookings: Soc. Mobility Memos (May 19, 2015), https://www.brookings.edu/blog/social-mobility-memos/2015/05/19/the-great-utility-of-the-great-gatsby-curve [https://perma.cc/RHS5-WR8Y] (explaining how income inequality in the United States exacerbates the effects of parental income on intergenerational economic mobility, and theorizing that unequal access to education and job networks are to blame). Scholars continue to document staggering economic disparities in access to higher education, with many criticizing admissions preferences that explicitly favor children of alumni or wealthy donors as particularly unmeritorious. See Jennifer Giancola & Richard D. Kahlenberg, Jack Kent Cooke Found., True Merit: Ensuring Our Brightest Students Have Access to Our Best Colleges and Universities 1, 25 (2016), https://www.jkcf.org/wp-content/uploads/2018/06/JKCF_True_Merit_FULLReport.pdf [https://perma.cc/45GG-9DN6] (“American postsecondary education is highly stratified by socioeconomic class, with 72 percent of students in the nation’s most competitive institutions coming from families in the wealthiest quartile.”); Raj Chetty et al., Mobility Report Cards: The Role of Colleges in Intergenerational Mobility (Nat’l Bureau of Econ. Research, Working Paper No. 23618, 2017) (unpaginated abstract), https://www.nber.org/papers/w23618.pdf [https://perma.cc/39R7-AWNP] (“[A]ccess to colleges varies greatly by parent income. For example, children whose parents are in the top 1% of the income distribution are 77 times more likely to attend an Ivy League college than those whose parents are in the bottom income quintile.”); Daniel Golden, The Price of Admission 4–11 (2006) (explaining how children of wealthy parents benefit from legacy preferences and other advantages in college admissions, helping them gain access to elite networks of alumni and prospective employers); Thomas J. Espenshade et al., Admission Preferences for Minority Students, Athletes, and Legacies at Elite Universities, 85 Soc. Sci. Q. 1422, 1431 (2004) (finding legacy status gave applicants to elite colleges an advantage equivalent to scoring 160 points higher on the SAT, based on a 1600-point scale); Michael Hurwitz, The Impact of Legacy Status on Undergraduate Admissions at Elite Colleges and Universities, 30 Econs. Educ. Rev. 480, 480 (2011) (estimating that legacy applicants are over three times more likely than non-legacies to be admitted to elite universities); Peter Arcidiacono et al., Legacy and Athlete Preferences at Harvard (Nat’l Bureau of Econ. Research, Working Paper No. 26316, 2019), http://public.econ.duke.edu/~psarcidi/legacyathlete.pdf [https://perma.cc/4EZS-KKEV] (finding that over forty-three percent of white students admitted to Harvard University between 2009 and 2014 benefitted from admissions policies favoring legacies, athletes, children of faculty and staff, or applicants whose families have donated substantial amounts of money to the school, yet about three quarters of this group would not have been admitted but for the preferential treatment, according to authors’ models); see also Meet the Class of 2022, Harv. Crimson, https://features.thecrimson.com/2018/freshman-survey/makeup [https://perma.cc/L9YW-HH4N] (reporting that over one-third of survey respondents from Harvard’s 2019 freshman class had at least one relative who previously attended Harvard). See generally Richard D. Kahlenberg, Introduction, in Affirmative Action for the Rich (Richard D. Kahlenberg ed., 2010) (summarizing scholarship on legacy admissions).
[6] See, e.g., James Truslow Adams, The Epic of America 404 (1931) (“[T]here has been also the American dream, that dream of a land in which life should be better and richer and fuller for every man, with opportunity for each according to his ability or achievement.”); Horatio Alger, Jr., Ragged Dick (Philadelphia, John C. Winston Co. 1868); Frederick Douglass, Address before the Students of the Indian Industrial School at Carlisle, Pa.: Self-Made Men. 16 (1874), https://www.loc.gov/item/mfd.29006 [https://perma.cc/7QAR-RB48] (“When we find a man who has ascended heights beyond ourselves . . . we know that he has worked harder, better and more wisely than we. He was awake while we slept. He was busy while we were idle and he was wisely improving his time and talents while we were wasting ours.”); Letter from Thomas Jefferson to John Adams (Oct. 28, 1813), https://founders.archives.gov/documents/Jefferson/03-06-02-0446 [https://perma.cc/MK4S-T5LG] (contrasting “natural aristocracy” based on “virtue & talents” with “artificial aristocracy” based on “wealth and birth” and arguing government positions should be filled based on the former); Barack Obama, American Dream Speech (Nov. 7, 2007), http://www.cnn.com/2007/POLITICS/12/21/obama.trans.americandream [https://perma.cc/DN3M-TFPY] (“These are dreams that drove my mother. . . . [She] raised . . . me to believe that in America there are no barriers to success—no matter what color you are, no matter where you’re from, no matter how much money you have.”); President Donald J. Trump, State of the Union Address (Jan. 30, 2018), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-state-union-address [https://perma.cc/R56E-3SCX]) (“There has never been a better time to start living the American Dream. . . . If you work hard, if you believe in yourself, if you believe in America, then you can dream anything, you can be anything . . . .”); cf. Langston Hughes, Let America Be America Again, in Esquire 92 (1936) (critiquing the American Dream as a false promise for many, including African Americans, Native Americans, immigrants, and the poor). Merriam-Webster’s Dictionary defines “the American dream” as “a happy way of living that is thought of by many Americans as something that can be achieved by anyone in the U.S. especially by working hard and becoming successful.” The American Dream, Merriam-Webster Dictionary (emphasis added), https://www.merriam-webster.com/dictionary/the%20American%20dream [https://perma.cc/225C-RRXF].
[7] See sources cited supra note 5. In his recent book, The Meritocracy Trap, Professor Daniel Markovitz argues that meritocracy—the idea that educational and employment opportunities should be based on deserved merit—is itself to blame for the stark inequality of opportunity in America because of the advantages that a meritocratic system inherently confers on the rich. Daniel Markovitz, The Meritocracy Trap 24–27 (2019).
[8] See, e.g., About EEOC, Equal Emp’t Opportunity Commission, https://www.eeoc.gov/eeoc [https://perma.cc/D95T-8D69] (“The EEOC’s vision is: Respectful and inclusive workplaces with equal employment opportunity for all.” (alteration removed)); see also W.Z., How to Get Rich in America, Economist (Feb. 2, 2017), https://www.economist.com/the-economist-explains/2017/02/02/how-to-get-rich-in-america [https://perma.cc/9TWT-G9U3] (reporting survey results showing almost three-quarters of Americans believe hard work is very important to success but less than twenty percent believe the same about wealth).
[9] See sources cited supra note 5.
[10] See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 348 (1977) (“The primary purpose of Title VII was ‘to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.’” (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973))); Julie C. Suk, Procedural Path Dependence: Discrimination and the Civil-Criminal Divide, 85 Wash. U. L. Rev. 1315, 1320 (2008) (“Prior to the passage of Title VII and the first wave of litigation, many employers explicitly excluded black workers or segregated job categories on the basis of race. Such overt forms of discrimination are rare today; yet the law seems unable to remedy any other form of discrimination.”).
[11] See EEOC v. Consol. Serv. Sys., 989 F.2d 233, 236 (7th Cir. 1993) (explaining the significant employer advantages of word-of-mouth hiring); Steve McDonald, Network Effects Across the Earnings Distribution: Payoffs to Visible and Invisible Job Finding Assistance, 49 Soc. Sci. Res. 299, 309 (2015) (“Referrals operate as an important part of that social closure process, as they help to reduce uncertainty about trust and qualifications of job candidates.”); Steve McDonald et al., Frontiers of Sociological Research on Networks, Work, and Inequality, in Networks, Work and Inequality 9 (Steve McDonald ed., 2013) (explaining advantages of informal hiring to both employers and job seekers, including efficiency and cost reduction).
[12] Peter V. Marsden, Homogeneity in Confiding Relations, 10 Soc. Networks 57, 74 (1988) (finding “extreme” segregation along racial and ethnic lines in Americans’ social relationships); Kim Parker et al., Race and Social Connections—Friends, Family and Neighborhoods, Pew Research Ctr. (June 11, 2015), http://www.pewsocialtrends.org/2015/06/11/chapter-5-race-and-social-connections-friends-family-and-neighborhoods [https://perma.cc/75U2-TPR7] (“Individuals tend to have more friends among their own race group than they do among races that are different than their own.”); see also Tristin K. Green, Work Culture and Discrimination, 93 Calif. L. Rev. 623, 647–48 (2005) (“Even the most basic similarity-attraction theory suggests that we tend to favor those who are like us.”).
[13] See Katherine V. W. Stone, From Widgets to Digits: Employment Regulation for the Changing Workplace 159–67 (2004); Jomills Henry Braddock II & James M. McPartland, How Minorities Continue to Be Excluded from Equal Employment Opportunities: Research on Labor Market and Institutional Barriers, 43 J. Soc. Issues 5, 9–12 (1987) (finding employer reliance on informal networking in hiring disadvantages nonwhite applicants); Steve McDonald, supra note 11 (finding network-based job searching and informal recruitment practices produce significant wage advantages for those seeking middle and high wage employment); McDonald, What’s in the “Old Boys” Network? Accessing Social Capital in Gendered and Racialized Networks, 33 Soc. Networks 317, 327–29 (2011) (finding access to white male networks provides greater access to job information and important employer contacts); Steve McDonald & Jacob C. Day, Race, Gender, and the Invisible Hand of Social Capital, 4 Soc. Compass 532, 532 (2010) (“Because social networks are segregated by race and gender, access to these social capital resources tends to be greater for white men than for minorities and women. . . . [T]he invisible hand of social capital helps to perpetuate race and gender inequality.”); Barbara F. Reskin & Debra Branch McBrier, Why Not Ascription? Organizations’ Employment of Male and Female Managers, 65 Am. Soc. Rev. 210 (2000) (finding informal networking disadvantages women in recruitment for managerial jobs); see also Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1186–88 (1995); Ann C. McGinley, The Emerging Cronyism Defense and Affirmative Action: A Critical Perspective on the Distinction Between Colorblind and Race-Conscious Decision Making Under Title VII, 39 Ariz. L. Rev. 1003, 1023–25 (1997); Suk, supra note 10, at 1320–21; id. at 1367 (“[T]he forms of behavior that tend to disadvantage racial minorities today . . . [include] implicit bias, structural discrimination, lack of access to networking, [and] lack of comfort in the corporate culture . . . .”); Krueger, supra note 5 (“[I]f social connections are important for success in the economy (e.g., getting the right summer internship), and wealthy parents have access to job networks, then a spreading out of the income distribution would leave children from the bottom of the distribution in a more disadvantaged position in terms of gaining access to networks that will ultimately lead to a higher paid job.”). For an overview of the social science literature on how access to informal social networks affects access to employment opportunities and disadvantages women and applicants of color, see McDonald & Day, supra, at 534–38.
[14] Stacy Jones, White Men Account for 72% of Corporate Leadership at 16 of the Fortune 500 Companies, Fortune (June 9, 2017), https://fortune.com/2017/06/09/white-men-senior-executives-fortune-500-companies-diversity-data [https://perma.cc/564A-SE5Q] (explaining that demographic data from sixteen Fortune 500 companies shows white men hold seventy-two percent of corporate leadership positions); Elizabeth Olson, Slow Gains for Women and Minorities on Boards of Big U.S. Firms, Study Says, N.Y. Times (Jan. 15, 2019), https://www.nytimes.com/2019/01/15/business/women-minorities-corporate-boards.html [https://perma.cc/U83S-6SJX] (“The [Alliance for Board Diversity’s] study analyzed 1,033 new board appointments at Fortune 500 companies last year. More than 80 percent of the appointees were white, and about 60 percent of that group were men.”).
[15] See McDonald & Day, supra note 13, at 536; McGinley, supra note 13, at 1025.
[16] See sources cited supra note 14.
[17] See Krieger, supra note 13, at 1248; McGinley, supra note 13, at 1057–58; Suk, supra note 10, at 1320–21.
[18] Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections at 2, 28, and 42 U.S.C. (2012)).
[21] 42 U.S.C. § 2000e-2(k)(1)(A)(i) (2012).
[23] Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections at 2, 28, and 42 U.S.C. (2012)).
[24] Alfred L. Brophy, The Civil Rights Act of 1964 and the Fulcrum of Property Rights, 6 Ala. C.R. & C.L. L. Rev. 75, 75–76 (2014) (“Legal historians who have assessed the long history of the Civil Rights Movement have tended to agree that the [Civil Rights Act of 1964] was a fulcrum moment on the move towards civil rights . . . .”); Mae Bowen, This Day in History: President Lyndon B. Johnson Signed the Civil Rights Act of 1964, White House President Barack Obama (July 2, 2015, 3:29 PM), https://obamawhitehouse.archives.gov/blog/2015/07/02/day-history-president-lyndon-b-johnson-signed-civil-rights-act-1964 [https://perma.cc/KD5P-2PV9] (“The Civil Rights Act of 1964, more than 100 years after the end of the Civil War, sought to finally guarantee the equality of all races and creeds in the United States.”); Civil Rights Movement, John F. Kennedy Presidential Libr. & Museum, https://www.jfklibrary.org/learn/about-jfk/jfk-in-history/civil-rights-movement?p=3 [https://perma.cc/WRF3-KVK2] (“Passed on July 2, 1964, the Civil Rights Act was a crucial step in achieving the civil rights movement’s initial goal: full legal equality.”); Pre 1965: Events Leading to the Creation of EEOC, Equal Emp. Opportunity Commission, https://www.eeoc.gov/eeoc/history/35th/pre1965/index.html [https://perma.cc/2MFK-JKJG].
[25] § 2000e-2. Since Title VII’s enactment, the Supreme Court has repeatedly reaffirmed that its original purpose was to eliminate employment discrimination against nonwhite Americans. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 580 (2009) (“[T]he important purpose of Title VII [was] that the workplace be an environment free of discrimination, where race is not a barrier to opportunity.”); Connecticut v. Teal, 457 U.S. 440, 449 (1982) (“Congress’ primary purpose [in enacting Title VII] was the prophylactic one of achieving equality of employment opportunities and removing barriers to such equality.” (internal quotation and citation omitted)); United Steelworkers v. Weber, 443 U.S. 193, 202, 204 (1979) (“Congress’ primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with the plight of the Negro in our economy. . . . The very statutory words [were] intended as a spur or catalyst to cause employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country’s history . . . .” (internal quotations and citations omitted)); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 348 (1977) (“The primary purpose of Title VII was to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.” (internal quotations and citations omitted)); Griggs v. Duke Power Co., 401 U.S. 424, 429–30 (1971) (“The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.”).
[26] § 2000e-2(a) (“It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .”); H.R. Rep. No. 88-914, at 26 (1963) (“The purpose of [Title VII] is to eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment based on race, color, religion, or national origin.”); 110 Cong. Rec. 6547–48 (1964) (remarks of Sen. Humphrey) (“I would like to turn now to the problem of racial discrimination in employment. At the present time Negroes and members of other minority groups do not have an equal chance to be hired, to be promoted, and to be given the most desirable assignments. . . . [The] crux of the problem is to open employment opportunities for Negroes in occupations which have been traditionally closed to them. . . . [T]itle VII provides a very moderate and reasonable remedy for problems of racial discrimination in employment.”); see also TWA v. Hardison, 432 U.S. 63, 71 (1977) (“[B]oth the language and the legislative history of [Title VII emphasize] eliminating discrimination in employment.”); Taxman v. Bd. of Educ., 91 F.3d 1547, 1557 (3d Cir. 1996) (“Title VII was enacted to further two primary goals: to end discrimination on the basis of race, color, religion, sex or national origin, thereby guaranteeing equal opportunity in the workplace, and to remedy the segregation and underrepresentation of minorities that discrimination has caused in our Nation’s work force.”). See generally Francis J. Vaas, Title VII: Legislative History, 7 B.C. L. Rev. 431, 433–57 (1966).
[27] See 110 Cong. Rec. 6552 (remarks of Sen. Humphrey) (“Negroes . . . have been excluded from the American dream for so long. . . . [M]illions of people . . . cry out to be a part of the great American dream.”).
[29] Title VII applies only to employers “who [have] fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . .” Id. § 2000e(b). It does not apply to the federal government, recognized Native American tribes, or certain nonprofit private membership clubs. Id.
[30] Id. § 2000e-2(a). Notably missing from Title VII’s textual list of protected classes are sexual orientation and gender identity. See id. The Equal Employment Opportunity Commission takes the position that Title VII’s prohibition against employment discrimination based on sex covers members of these classes. What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, Equal Emp. Opportunity Commission, https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm [https://perma.cc/8ZVG-FV5K]. The Supreme Court has granted certiorari in three cases for the 2019–2020 term to decide whether Title VII’s employment protections extend to lesbian, gay, bi-sexual, and transgender individuals. Amy Howe, Court to Take Up LGBT Rights in the Workplace (Updated), SCOTUSblog (Apr. 22, 2019, 10:35 AM), https://www.scotusblog.com/2019/04/court-to-take-up-lgbt-rights-in-the-workplace [https://perma.cc/MU92-NZSN].
[31] § 2000e-2(a) (“It shall be an unlawful employment practice for an employer—(1) to fail or refuse to hire . . . any individual . . . because of such individual’s race, color, religion, sex, or national origin . . . .” (emphasis added)).
[32] Id. §§ 2000e-4–2000e-5. See generally About EEOC, supra note 8.
[34] Id. § 2000e-2(a). Title VII’s prohibition against intentional discrimination is known as “disparate treatment.” E.g., Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
[36] See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
[40] Id. at 432 (emphasis in original).
[44] See 4 Joseph G. Cook & John L. Sobieski, Jr., Civil Rights Actions ¶ 21.23(A) (2019).
[47] See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).
[52] See Charles A. Sullivan, Disparate Impact: Looking Past the Desert Palace Mirage, 47 Wm. & Mary L. Rev. 911, 953 (2005); Kevin Tobia, Disparate Statistics, 126 Yale L.J. 2382, 2389 (2017).
[53] 490 U.S. 642 (1989) (5-4 decision), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, as recognized in Raytheon Co. v. Hernandez, 540 U.S. 44 (2003).
[55] Id. at 650. The district court below did not make any findings of fact as to the actual statistical disparity but found that significant disparities existed and “nearly all employed in the cannery worker department [were] non-white.” Id. at 650 n.5 (internal quotation omitted).
[58] See Griggs v. Duke Power Co., 401 U.S. 424, 431–32 (1971); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).
[59] Wards Cove, 490 U.S. at 660.
[60] Id. at 661–62 (Blackmun, J., dissenting) (“Today a bare majority of the Court takes three major strides backwards in the battle against race discrimination.”).
[61] Id. at 662–63, 668–69 (Stevens, J., dissenting).
[69] See Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074–75 (codified at 42 U.S.C. § 2000e-2(k) (2012)).
[70] Id. The 1991 Amendment to Title VII provides, in relevant part:
The Congress finds that—
(1) additional remedies under Federal law are needed to deter unlawful harassment and intentional discrimination in the workplace;
(2) the decision of the Supreme Court in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)[,] has weakened the scope and effectiveness of Federal civil rights protections; and
(3) legislation is necessary to provide additional protections against unlawful discrimination in employment.
The purposes of this Act are—
(1) to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace;
(2) to codify the concepts of “business necessity” and “job related” enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and in the other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989);
(3) to confirm statutory authority and provide statutory guidelines for the adjudication of disparate impact suits under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); and
(4) to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.
Id.
[71] § 2000e-2(k)(1)(A) (“An unlawful employment practice based on disparate impact is established under this title only if . . . .” (emphasis added)).
[72] See id.; Tobia, supra note 52, at 2390.
[73] See Tobia, supra note 52, at 2389.
[74] § 2000e-2(k)(1)(A)(i) (requiring a respondent-employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity . . . .” (emphasis added)).
[75] Id.; see also Ricci v. DeStefano, 557 U.S. 557, 578 (2009) (citing § 2000e-2) (“Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses ‘a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.’ An employer may defend against liability by demonstrating that the practice is ‘job related for the position in question and consistent with business necessity.’ Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.” (internal citation omitted)). Once a plaintiff has demonstrated a prima facie disparate impact, the burden of persuasion, not merely production, shifts to the defendant. See § 2000e(m) (“The term ‘demonstrates’ means meets the burdens of production and persuasion.”).
[77] See id. at 624 (Ginsburg, J., dissenting) (“Among the 1991 alterations, Congress formally codified the disparate-impact component of Title VII. In so amending the statute, Congress made plain its intention to restore ‘the concepts of “business necessity” and “job related” enunciated by the Supreme Court in Griggs v Duke Power Co. . . . and in other Supreme Court decisions prior to Wards Cove Packing Co. v Atonio.’” (quoting Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071)).
[78] See Sullivan, supra note 52, at 963–64 (reviewing the statutory interpretation problems created by the 1991 Amendment).
[80] See id. § 2000e-2(k)(1)(C).
[81] See id. § 2000e-2(k)(1)(B)(i).
[86] 487 U.S. 977 (1988), superseded on other grounds by Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.
[92] For an argument that cronyism is not a justifiable defense to a colorable Title VII claim, see McGinley, supra note 13, at 1022–28.
[93] See id. at 1010 (defining “cronyism” as hiring without regard to merit); Cronyism, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/cronyism [https:// perma.cc/5YWF-JYEA] (defining “cronyism” as “partiality to cronies especially as evidenced in the appointment of political hangers-on to office without regard to their qualifications”); see also Ibrahim v. N.Y. State Dep’t of Health, 904 F.2d 161, 162 (2d Cir. 1990) (“The advancement of such persons in public office without regard to the purpose of those laws which mandate that such appointments be based on merit and fitness is called cronyism.”).
[94] See, e.g., Gordon v. City of New York, 14 Civ. 6115 (JPO) (JCF), 2016 U.S. Dist. LEXIS 118962, at *17–18 (S.D.N.Y. Sep. 2, 2016); Hagan v. City of New York, 39 F. Supp. 3d 481, 499 (S.D.N.Y. 2014); see also Harris v. Hays, 452 F.3d 714, 721 (8th Cir. 2006) (Gibson, J., concurring) (“It is well established that cronyism can form the basis of a disparate impact claim where the plaintiff is able to show a pattern of favoritism that closes a protected class out of jobs or contracts.”). But see Foster v. Dalton, 71 F.3d 52, 57 (1st Cir. 1995) (holding cronyism without intentional discrimination is not actionable under disparate treatment theory).
[95] Hagan, 39 F. Supp. 3d at 488–90.
[98] See cases cited supra note 25.
[99] See Griggs v. Duke Power Co., 401 U.S. 424, 429–31 (1971); see also Lawrence Rosenthal, Saving Disparate Impact, 34 Cardozo L. Rev. 2157, 2158 n.7 (2013) (summarizing academic consensus that disparate impact doctrine has driven employment reforms and broadened access to employment opportunities for women and people of color).
[100] See Griggs, 401 U.S. at 430–31.
[101] See, e.g., Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 990 (1988) (“[E]ven if one assumed that [intentional] discrimination can be adequately policed through disparate treatment analysis, the problem of subconscious stereotypes and prejudices would remain.”); EEOC v. Francis W. Parker Sch., 41 F.3d 1073, 1080 (7th Cir. 1994) (“The Griggs disparate impact method recognizes that not all discrimination is apparent and overt. It is sometimes subtle and hidden. It is at times hidden even from the decisionmaker herself, reflecting perhaps subconscious predilections and stereotypes.”); EEOC v. Inland Marine Indus., 729 F.2d 1229, 1236 (9th Cir. 1984) (“In today’s world, racial discrimination sometimes wears a benign mask. Current practices, though harmless in appearance, may hide subconscious attitudes, and perpetuate the effects of past discriminatory practices. Although subjective employment criteria are not illegal per se, courts should examine such criteria very carefully to make certain that they are not vehicles for silent discrimination.” (internal citations omitted)); Rosenthal, supra note 99, at 2159 (“[A]s many legal scholars have observed, social science research has demonstrated the prevalence of discrimination in the workplace in forms subtler than in the past, often operating at an unconscious level and frequently regarded as implicit in its character.”); sources cited supra note 13.
[102] See, e.g., Gordon v. City of New York, 14 Civ. 6115 (JPO) (JCF), 2016 U.S. Dist. LEXIS 118962, at *17–18 (S.D.N.Y. Sep. 2, 2016); Hagan v. City of New York, 39 F. Supp. 3d 481, 499 (S.D.N.Y. 2014).
[103] See Barry Goldstein & Patrick O. Patterson, Ricci v. DeStefano: Does It Herald an “Evil Day,” or Does It Lack “Staying Power”?, 40 U. Mem. L. Rev. 705, 757 (2010) (“[Disparate impact] suits accounted for nine percent of all employment discrimination cases filed in 1972 and 1973, in the immediate aftermath of Griggs, but less than five percent of the cases filed by the late 1980s.”); Nicholas Pedriana & Robin Stryker, The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965-1971, 110 Am. J. Soc. 709, 740–43 (2004) (explaining that disparate impact doctrine “was in clear decline by the 1980s”); Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 499 (2003) (“As a practical matter, disparate impact litigation now plays a much smaller role than it once did in increasing employment opportunities for large numbers of nonwhite workers.”); George Rutherglen, Abolition in a Different Voice, 78 Va. L. Rev. 1463, 1476 (1992) (reviewing Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws (1992)) (“The theory of disparate impact did work great changes, but only until 1977, when it was limited by decisions that imposed procedural barriers in the way of class actions, eliminated seniority systems from the scope of the theory, and made the plaintiff’s initial showing of adverse impact much more complicated.”); Sullivan, supra note 52, at 1000 (“Surprising unanimity exists among the commentators that the law is far behind the times with respect to workplace discrimination. Traditional doctrines result in relatively few verdicts for plaintiffs, despite strong reason to believe that discrimination is pervasive.”).
[104] E.g., Joseph A. Seiner, Plausibility and Disparate Impact, 64 Hastings L.J. 287, 298 (2013) (“Correctly identifying a particular policy that is unlawful, establishing the existence of a statistical disparity, providing a business rationale for an employment practice, and proposing a less discriminatory alternative are all subjective determinations open to interpretation by the particular court. This subjectivity has clouded disparate impact law with confusion and uncertainty, as both the litigants and courts attempt to define its terms.”).
[105] E.g., Rutherglen, supra note 103, at 1476.
[106] E.g., Elaine W. Shoben, Disparate Impact Theory in Employment Discrimination: What’s Griggs Still Good For? What Not?, 42 Brandeis L.J. 597, 600 (2004) (“[P]erhaps [the] most important[] reason that disparate impact litigation has been languishing is that its potential is not often appreciated by the practicing bar.”).
[107] See Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory, 38 Harv. Civ. R-C.L. L. Rev. 91, 92 (2003) (“[B]oth conscious and unconscious bias operate at multiple levels of social interaction, often resulting in decreased opportunity for disfavored groups without producing a single, identifiable discriminatory decision or a perceptibly hostile work environment.”); Michelle A. Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 Wash. & Lee L. Rev. 3, 36–46, 77 (2005); see also McGinley, supra note 13, at 1026 n.142 (“Because hiring based on cronyism is not normally a policy or even a practice that dominates a workplace’s decision making but rather is an ad hoc decision, it may be difficult to prove that cronyism causes a disparate impact.” (emphasis added)). For an overview of the literature discussing Title VII’s “particular employment practice” requirement and a skeptical view of its role in hampering disparate impact doctrine, see Sullivan, supra note 52, at 976–81.
[108] See sources cited supra note 107.
[109] Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989).
[110] 42 U.S.C. § 2000e-2(k) (2012).
[111] See L. Camille Hebert, The Disparate Impact of Sexual Harassment: Does Motive Matter?, 53 U. Kan. L. Rev. 341, 379–82 (2005) (arguing nothing in Title VII’s text or legislative history suggests the “particular employment requirement” was intended to narrow disparate impact beyond a cursory requirement that a plaintiff point to an identifiable employer practice alleged to cause the disparate impact); Travis, supra note 107, at 77–80 (arguing the Supreme Court’s original introduction of the “particular employment practice” requirement in Wards Cove was not intended to exclude implicitly discriminatory practices).
[112] See, e.g., Munoz v. Orr, 200 F.3d 291, 303 (5th Cir. 2000) (“[Plaintiff] does not purport to show, nor is there evidence elsewhere, that any concentration of Hispanic employees in particular job series was due to discrimination . . . .”); Attenborough v. Constr. & Gen. Bldg. Laborers’ Local 79, 691 F. Supp. 2d 372, 387 (S.D.N.Y. 2009) (“[P]laintiffs offer insufficient evidence that it was the alleged nepotism and cronyism that caused this result.”).
[113] See Munoz, 200 F.3d at 303; Attenborough, 691 F. Supp. 2d at 384–87.
[114] McGinley, supra note 13, at 1026 n.142; see, e.g., Attenborough, 691 F. Supp. 2d 372.
[115] Attenborough, 691 F. Supp. 2d 372.
[121] See discussion supra Section I.A. Disparate treatment theory’s requirement that plaintiffs show proof of intentional discrimination inherently defeats claims resting on unintentional or structural discrimination.
[122] See discussion supra Section II.B.
[123] Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989) (5-4 decision).
[124] The Supreme Court has recognized the challenge facing plaintiffs alleging disparate impact discrimination based on subjective employment practices in meeting Title VII’s particularity requirement. See Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994 (1988) (“[I]dentifying the specific employment practice that is challenged . . . may sometimes be more difficult when subjective selection criteria are at issue.”).
[125] See sources cited supra note 93.
[126] See sources cited supra note 2.
[127] See Thomas v. Wash. Cty. Sch. Bd., 915 F.2d 922, 925 (4th Cir. 1990) (“[W]hen the work force is predominantly white, nepotism and similar practices which operate to exclude outsiders may discriminate against minorities as effectively as any intentionally discriminatory policy.”); sources cited supra note 101.
[128] See sources cited supra note 127.
[129] See discussion supra Section I.B.
[130] See cases cited supra note 25.
[131] See discussion supra Sections I.A, II.B.
[132] 947 F.2d 292 (7th Cir. 1991).
[138] Id.; see Travis, supra note 107, at 42–43 (citing Chicago Miniature Lamp Works, 947 F.2d 292).
[139] See United States v. Brennan, 650 F.3d 65 (2d Cir. 2011); Thomas v. Wash. Cty. Sch. Bd., 915 F.2d 922 (4th Cir. 1990).
[151] See Thomas v. Wash. Cty. Sch. Bd., 915 F.2d 922 (4th Cir. 1990). Though the case predated the 1991 Amendment that codified the particularity requirement, the Supreme Court had already decided Wards Cove in 1989, which originally introduced the particularity requirement, and was therefore binding on the Fourth Circuit at the time it decided Thomas. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989).
[152] Thomas, 915 F.2d at 923–24.
[153] Id. at 924. The case also involved allegations of nepotism, but the court explained its holding in broad terms and fashioned a broad remedy prohibiting using word-of-mouth hiring for all applicants. Id. at 926.
[154] Id. at 925–26; see id. at 925 (“[W]ord-of-mouth hiring . . . in the context of a predominantly white work force, serve[s] to freeze the effects of past discrimination.”).
[157] See Travis, supra note 107, at 87–88 (citing Thomas, 915 F.2d 922).
[158] See sources cited supra notes 13, 127.
[159] See, e.g., EEOC v. Consol. Serv. Sys., 989 F.2d 233, 236 (7th Cir. 1993) (explaining the significant employer advantages of word-of-mouth hiring).
[160] See sources cited supra note 13.
[161] See sources cited supra notes 104–107.
[162] See cases cited supra note 25; see also Travis, supra note 107, at 77–92 (proposing a “transformative approach” to disparate impact doctrine where courts allow challenges to “default organizational structures” in gender discrimination cases, construing them as sufficient “particular employment practice[s]”).
[163] See 42 U.S.C. § 2000e-2(k) (2012); sources cited supra note 26.
[164] See § 2000e-2(k); Tobia, supra note 52, at 2390.
[165] See sources cited supra note 13.
[166] See sources cited supra notes 104–107.
[167] See Travis, supra note 107, at 77 (“[A] woman’s identification of an exclusionary organizational norm would be deemed a proper challenge to a particular employment practice that is subject to disparate impact review.”); see also Hebert, supra note 111, at 379–82 (arguing Title VII’s particularity requirement was not intended to narrow disparate impact to discrete employer practices).
[168] Travis, supra note 107, at 36–46, 77.
[169] Id. at 42–43, 87–88 (exposing the circuit split on whether word-of-mouth hiring is a “particular employment practice” subject to disparate impact challenge (first citing EEOC v. Chi. Miniature Lamp Works, 947 F.2d 292 (7th Cir. 1991); and then citing Thomas v. Wash. Cty. Sch. Bd., 915 F.2d 922 (4th Cir. 1990))).
[170] See United States v. Brennan, 650 F.3d 65, 126 (2d Cir. 2011); Thomas, 915 F.2d at 926.
[171] See, e.g., Munoz v. Orr, 200 F.3d 291, 303 (5th Cir. 2000); Chicago Miniature Lamp Works, 947 F.2d at 305; Attenborough v. Constr. & Gen. Bldg. Laborers’ Local 79, 691 F. Supp. 2d 372, 386–87 (S.D.N.Y. 2009).
[172] See discussion supra Section I.C. Professor Ann McGinley has theorized that social science research could help bridge the causation gap created by Title VII’s particularity requirement in cases involving subjective employment practices such as cronyism. McGinley, supra note 13, at 1026 n.142. This Proposal adopts this approach to overcome the particularity problem in networking discrimination cases.
[173] See 42 U.S.C. § 2000e-2(k)(1)(A)(i) (2012).
[175] See id. § 2000e-2(k)(1)(A)(ii).
[176] Id. § 2000e-2(k)(1)(A)(i) (emphasis added).
[177] Id. § 2000e-2(k)(1)(B)(i).
[178] See id. Professor Charles Sullivan has argued that such “framing” of subjective employment practices as incapable of separation is entirely consistent with Title VII’s text and in many cases provides a workable solution to the particularity problem. Sullivan, supra note 52, at 979–81.
[179] See § 2000e-2(k)(1)(B)(i).
[180] See Travis, supra note 107, at 88–89 (rebutting the financial feasibility concern with reducing plaintiffs’ particularity burden because employers would maintain the business necessity defense).
[182] See, e.g., Ricci v. DeStefano, 557 U.S. 557, 587–89 (2009) (explaining the business necessity defense and holding that written and oral examinations for firefighters were a business necessity); El v. SEPTA, 479 F.3d 232, 238–48 (3d Cir. 2007) (interpreting the 1991 Amendment’s effect on the business necessity standard and holding bus company’s inquiry into applicant’s prior criminal background was a business necessity).
[183] See Travis, supra note 107, at 88–89.
[184] See Krieger, supra note 13, at 1227–37.
[185] See 29 C.F.R. §§ 1607.1–1607.18 (2018). The regulation states its purpose: “These guidelines incorporate a single set of principles which are designed to assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with requirements of Federal law . . . .” Id. § 1607.1(B).
[189] For an argument that validating subjective hiring procedures is not economically feasible for smaller businesses, see Krieger, supra note 13, at 1227–37.
[190] See Travis, supra note 107, at 88–89 (“Placing this burden on the employer will allow courts to distinguish jobs in which default organizational structures really are dictated by business needs from jobs in which mere convenience or historical tenacity are dictating the default scheme.”); sources cited supra note 101.
[191] See sources cited supra note 26 and accompanying text.
[192] E.g., Lewis v. City of Chicago, 560 U.S. 205, 211 (2010) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)).
[193] Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074–75 (codified at 42 U.S.C. § 2000e-2(k) (2012)).
[194] See Tobia, supra note 52, at 2390.
[195] See Travis, supra note 107, at 80 (“The term ‘particular’ was intended to exclude the use of bare statistical comparisons between the employer’s workforce and the relevant labor pool, not to exclude certain workplace practices from disparate impact review.”); Hebert, supra note 111, at 379–82 (arguing nothing in Title VII’s text or legislative history suggests the particular employment requirement was intended to narrow disparate impact beyond a cursory requirement that a plaintiff point to an identifiable employer practice alleged to cause the disparate impact).
[196] See Travis, supra note 107, at 80; Hebert, supra note 111, at 379–82.
[197] Professor Sullivan has proposed a similar “risk-allocation” conception of disparate impact doctrine, where courts would use a “flexible” business necessity standard as a vehicle for allocating the economic and social costs of negligent discrimination. Sullivan, supra note 52, at 995–1001; see also Travis, supra note 107, at 88–89 (arguing a lessened particularity requirement in sex discrimination cases properly places the burden on employers to affirmatively justify “default organizational structures” that discriminate against women). Similarly, a relaxed particularity standard in networking cases would allocate the costs of networking discrimination to employers where they are unable to justify it as a business necessity.
[198] See Griggs v. Duke Power Co., 401 U.S. 424, 431–32 (1971); Sullivan, supra note 52, at 996.