- Disparate treatment claims brought by a class of unsuccessful Hispanic and Latino applicants to a Ford assembly plant near Chicago were properly dismissed, but their disparate impact claims were allowed to proceed (Chaidez v. Ford Motor Company, No. 18-2753 (7th Cir. Aug. 28, 2019)).
- The applicants claimed that they were illegally denied employment at Ford on the basis of race. Specifically, they alleged interference with their job applications and/or a disparate impact caused by Ford's pre-employment basic skills test.
- The 7th U.S. Circuit Court of Appeals ruled that the plaintiffs had failed to exhaust all administrative remedies relating to their interference claim, so it had been properly dismissed. However, the 7th Circuit ruled the dismissal without prejudice, which left the door open for possible re-filing. The disparate impact claim had gone through the proper channels and was allowed to proceed outright.
The U.S. Equal Employment Opportunity Commission (EEOC) recognizes two types of discrimination: "disparate treatment" bias (intentional acts of discrimination) and "disparate impact" bias — neutral policies or practices that cannot be justified by business necessity and that have an unequal, adverse impact on a protected class of people.
What is "business necessity"? The EEOC says, in the context of selection procedures and employment tests, that "business necessity" means something that is "necessary to the safe and efficient performance of the job," as opposed to a general measurement of skills for employees or applicants.
Disparate impact tends to primarily affect women and people of color. Last year, for example, a group of black and Latino drivers sued Amazon after claiming a background check policy had a disparate impact on them.
Older workers can also be disparately impacted by, for example, a reduction-in-force that primarily affects high earners, many of whom happen to be age 40 or over. Similarly, recruiting events at college campuses or ads looking for "digital natives" might unfairly exclude older workers.
Finally, it's important to remember that being a member of a protected class does not insulate against claims of bias or retaliation from those in the same protected group or a different one. In this case, for example, the Latino and Hispanic workers complained that a black Ford employee who was a union chair for the Chicago-area plant was unfairly favoring black applicants in the hiring process.