What were the legal issues in this case? What did the appeals court decide?
A lawsuit was filed by David Dunlap against Tennessee Valley Authority or TVA under Title VII of the Civil Rights Act of 1964 for racial discrimination during selection of candidates. The district court found that the plaintiff Dunlap has endured discrimination under both disparate impact analyses and disparate treatment, stating that the subjective hiring process of TVA allowed racial discrimination against Dunlap and other colored applicants.
The Court of Appeals decided that although there was enough evidence to show that TVA was guilty of practicing disparate treatment, there was not sufficient proof to corroborate disparate impact. Taking into consideration all the evidences the Court of Appeal therefore affirmed on the claim of disparate treatment, reversed on the claim of disparate impact and affirmed the district court's award of damages and fees to the plaintiff.
2. Why did the plaintiff's disparate (adverse) impact claim fail?
As per the disparate impact theory a plaintiff needs to prove that the employment practices of the employers though appear to be neutral in the treatment of different groups actually are more discriminatory for one group over the other and these business practices have no connection with business necessity. In simplified terms it means that even if an employer directly doesn't have any intention of making discrimination based on race, color, religion, age and others, if the policies and rules and regulations employed by the employer disproportionately harm one class of section over the others, then the employer is in direct violation of title VII.
However, in disparate impact claim a prima facie case is started when a plaintiff identifies an employment practice to be unlawful and discriminatory and through the help of statistical analysis proves that such practice makes an adverse impact on a protected group of employees. In case of Dunlap vs. Tennessee Valley Authority or TVA, the plaintiff Dunlap could not prove that the alleged practices used during his interview and selection were used for other hiring decisions as well or not and hence there was no statistical data to prove that a protected class was adversely affected due to the unlawful employment practices of TVA. This is why Dunlap's disparate adverse impact claim failed in the court of law.
3. Why did the plaintiff's disparate treatment claim succeed? What was the evidence that the employer's reliance on interview scores was a pretext for race discrimination?
As per the definition provided by the Supreme Court of USA, disparate treatment is a discrimination in which "the employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin" (WAGE). In order to rebuff the prima facie case of disparate treatment, an employer needs to present a legitimate and nondiscriminatory reason for its discriminatory actions and in turn the plaintiff needs to prove that the stated reason is pretextual. In the case of Dunlap vs. TVA, TVA showcased the selection matrix that was used during Dunlap's interview stating that the interview scores earned by Dunlap didn't put him in the list of top ten candidates selected for the job and hence his job application was rejected. Dunlap being a plaintiff required to prove that the selection matrix was a pretext and eyewash to practice discrimination and he successfully proved that the matrix scores were manipulated to keep him out from the list of top ten selected candidates. That is why Dunlap's disparate treatment claim succeeded.
Dunlap presented a plenty of evidences before the district court that the interview questions were not assessed objectively and that matrix scores were manipulated to produce a result, racially biased in favor of whites. First, the selection committee of TVA determined that the interview scores would be counted for 70% of the total score of an applicant while the remaining 30% score would be determined by technical expertise. Thus very manipulatively the large part of the final score was shifted towards a subjective evaluation on the basis of communication skills while technical expertise that would determine one's merit and efficiency was given a less priority. This selection process totally contradicted the principles and practices delineated by TVA on filling vacancies that merit and efficiency are the primary basis for selection of job candidates and that education, training and experience form the basis for merit and efficiency. Further, Dunlap proved that how he was given less scores over the white candidates who despite having imperfect safety record and answering the same as Dunlap received more scores than him.
In contravention of TVA policy, some of the score sheets were revised as many as 70 times without any justified reasons. In order to show diversity on record TVA manipulated scores to recruit one only diversity candidate and an email instruction from the HR director of Cumberland plant of TVA showed how TVA very tactfully placed candidates into the list of 'Outstanding', 'Well-qualified' and 'Qualified' even before interview process started and once the interview process was finished and ranks were distributed, the number of outstanding candidates matched the number of job vacancies. These irregularities showed how unreliable was the hiring matrix used by TVA in selection of candidates and that the selection process was a merely a pretext for race discrimination.
4. Do you agree with the decision? Why or why not?
Yes, I agree with the decision made by the appeals court because all the evidences that were presented by the plaintiff indicated that the matrix scores were a pretext for racial discrimination. First of all, for a boilermaker job it is all about experience and knowledge that should matter. There is no business reason as to why TVA put more stress on the interviews by attributing 70% of the total score of an applicant to assessment of communication skills and gave technical expertise least priority by assigning 30% of the total score to it. Secondly, the emails from the human resource director of Cumberland plant of TVA exhibited how diversity is not condoned by the company and that just in order to show diversity on record, they hired one black applicant and that too because of the applicant’s complaint to EEOC.
5. What should the TVA have done differently with regard to interviewing and selecting candidates for these jobs?
TVA should have attributed 70% of the total score to the assessment of technical expertise as the job of boilermakers involves a lot of skills such as repair, shipbuilding, welding, power piping, mining, quarrying, maintenance and lot of other things and this would have fit into the principles and practices of TVA which apparently put more emphasis on merit and efficiency of candidates during selection. 30% of the scores could have been attributed to interviews to assess the personality, communication skill of the candidates. Since communication is not an important criteria for boilermakers' job performance, it should have been given least priority. Furthermore, TVA should have been fair in the distribution of scores. By giving Dunlap less marks over candidates who had imperfect safety record and who didn’t perform better than him, TVA manifested a biased policy and treatment to Dunlap and other colored candidates like him.
References
Walsh, David J (2010). Employment Law for Human Resource Practice. 3rd Edition. Cengage Learning.
Harney, Ken (2013). ‘Disparate impact’ doctrine troubling property owners, mortgage lenders. Inman News. Retrieved on 23rd July 2013 from <http://www.inman.com/2013/06/18/disparate-impact-doctrine-troubling-property-owners-mortgage-lenders-and-employers/>
Disparate Impact/Disparate Treatment, WAGE Project Inc. Retrieved on 23rd July 2013 from <http://www.wageproject.org/files/pdispimp.php>
What Is a Boilermaker? Retrieved on 23rd July 2013 from <http://www.boilermakers.org/resources/what_is_a_boilermaker>
