10.2190/YBEV-FBTE-4W5F-LT9M YBEVFBTE4W5FLT9M 4 Watson, Wards Cove, and The Burden of Proof in Disparate Impact Discrimination 55 70 20020509 20020509 20020509 20020509 YBEVFBTE4W5FLT9M.pdf http://baywood.metapress.com/link.asp?target=contribution&id=YBEVFBTE4W5FLT9M 1 Brian P. Heshizer Ph.D. Cleveland State University, Ohio Recent Supreme Court cases have established for disparate impact discrimination claimants the same burden of proof carried by claimants under disparate treatment discrimination. In the Watson case, the Court extended disparate impact to cover subjective employment practices such as interviews but maintained that plaintiffs had throughout the burden of proof. In Wards Cove, the Court reiterated that plaintiffs carried the burden of proof in disparate impact cases. Until these decisions, some courts had maintained that the burden of proof shifts from plaintiff to employer once the prima facie case had been established. These Supreme Court decisions have provoked a vigorous and often strident debate on the meaning and application of discrimination law. This article frames the issues in this debate and analyses the implications for disparate impact discrimination.

Rowe v. General Motors, 457 F.2d 348 (5th Cir. 1972).

B. Lee, "Subjective employment practices and disparate impact: unresolved issue," 15 Employee Relations Law Journal 403, 1989.

108 S.Ct. 2777 (1988), 47 FEP 102.

109 S.Ct. 2115 (1989), 49 FEP 1519.

Linda Gottfredson, "When job-testing ‘fairness’ is nothing but a quota," Wall St. J. December 6, 1990, A15.

J. Ledvinka and V. Scarpello, Federal Regulation of Personnel and Human Resources Management 182-184, 1991.

401 U.S. 424 (1971), 3 FEP 175.

411 U.S. 792 (1973).

450 U.S. 248 (1981).

Teamsters v. United States, 431 U.S. 324, 335 n. 15, 1977.

401 U.S. at 429-430.

W. Kandel, "Burden of proof after Watson: a major shift in disparate impact litigation?' 14 Employee Rel. L. J. 63, (1988).

D. Bell, "Watson and subjective hiring practices: the continuing saga of Industrial Psychology, Title VII and personnel selection," 22 Akron Law Review 599, (1989).

D. Roeger, "Watson v. Fort Worth Bank and Trust: the Supreme Court Robs Peter to Pay Paul," 17 Capital University L. Rev. 533, 536, 1989.

Watson v. Fort Worth Bank & Trust, 798 F.2d. 791 (5 Cir. 1986).

G. Mertens, "Watson v. Fort Worth Bank & Trust: unanswered questions," 14 Employee Relations L. J. 163, (1988).

Wards Cove, 810 F.2d 1477, 1485 (9 Cir. 1988).

Hazelwood School District v. United States, 433 U.S. 299, 307-308, (1977).

Hogler and Cleveland, "Wards Cove and the theory of disparate impact," 41 Labor Law J. 138, (1990).

Thomas Bond and Todd Sanders, "Watson v. Fort Worth Bank & Trust: the Supreme Court and employment discrimination," 40 Mercer L. Rev. 1025, (1989).

Bill Shaw, Gary Moore, and Michael Braswell, "Wards Cove Packing Co. v. Atonio," 41 Labor L. J. 183,(1990).

Robert Preer, "The Hidden Cost of Wards Cove," 41 Labor Law J. 45, (1990).

Paul Cox, "The future of the disparate impact theory of employment discrimination after Watson v. Fort Worth Bank," 53 Brigham Young University L. Rev. 753, (1988).

Anita Alessandra, "When doctrines collide: disparate treatment, disparate impact, and Watson v. Fort Worth Bank & Trust, 137 Univ. Pa. L. Rev. 1755 (1989).