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172 8 Proving Disparate Impact through Masculinities This chapter examines the use of masculinities theory to prove a disparate impact cause of action under Title VII of the 1964 Civil Rights Act.1 Disparate impact creates a potential remedy for the negative effects produced by masculine promotion policies, standards, and practices in workplaces (Title VII). As explained in chapter 5, unlike disparate treatment causes of action, disparate impact claims do not require proof of the employer’s intent to discriminate (Ricci v. DeStefano 2009). Rather, disparate impact law requires the plaintiff to prove that a facially neutral employment practice, which is also neutral as to its intent, causes an adverse disparate effect on a group protected by the statute (ibid.). If the employer cannot demonstrate that the practice is job related and consistent with business necessity, the plaintiff will prevail (ibid.). Even if the employer proves the job-­ relatedness and business necessity of the challenged practice, the plaintiff can still prevail if she proves that there are less discriminatory alternatives available that the employer refused to adopt (ibid.). Because masculinities are rarely visible or intentionally discriminatory, litigants may successfully use disparate impact to challenge masculine employment structures, hiring and promotion requirements, and practices that create a disparate effect on women and/ or nonconforming men. Consider the following hypothetical situation: a new chief of police , Jack Strong, takes charge of the department in Barneyville, a rapidly growing medium-­ sized city that is struggling with poverty and an increasing crime rate. The new mayor, Dan Payner, who recently appointed Strong as chief of police, was elected on a “law and order” platform. Both Payner and Strong understand that Barneyville needs a more professional police department. There will be a number of promotional openings in the police department for lieutenant and captain positions, and they hope to use those promotions to professionalize the force. Strong wants to assure that blacks and Latinos are represented in Proving Disparate Impact through Masculinities | 173 the new promotions but is wary of liability under Title VII. He knows that in Ricci v. DeStefano, the U.S. Supreme Court held the City of New Haven liable to white firefighters (and one Latino firefighter) for intentional race discrimination (disparate treatment) under Title VII for throwing out test results of a promotional exam on which the white firefighters and the one Latino firefighter performed well. The city’s fear of a disparate impact lawsuit brought by Latino and black firefighters was insufficient reason for throwing out the test results (Ricci v. DeStefano 2009). The Supreme Court ruled that because the city did not have a “strong basis in evidence” to conclude that the minority firefighters had a successful claim under the disparate impact provisions of Title VII, the city violated the Title VII rights of the nonminority firefighters when it discarded the test results on the basis of the racial composition (primarily white) of successful exam takers. This violation constituted intentional race discrimination (disparate treatment) and a violation of Title VII (ibid., 561). Jack is in a conundrum: he hopes to promote blacks and Latinos in proportion to their representation on the police force, but he is concerned about litigation from white police officers. He believes that black and Latino police officers are necessary to calm antipathies between the police and residents in the predominantly black and Latino neighborhoods in Barneyville, and that many of the black and Latino officers on the force are ready to serve as lieutenants and captains. But he wants to avoid a lawsuit. Jack hires a consultant to work on establishing testing standards for the promotions. The consultant, in order to avoid a disparate impact on applicants of color, recommends a written test that would represent 40 percent of the final promotional score, and creates the test in consultation with a number of groups representing both whites and minorities. For the written test, he creates questions that are related to the specific jobs in Barneyville. He also recommends that the remaining 60 percent of the test include an oral interview and a role-­ play in which the candidate’s command presence is evaluated. Police departments in other communities have had success promoting qualified police officers of color using these standards. Command presence is the physical manifestation of how an officer leads: appearance , apparent confidence and control of the situation, body movements , eye contact, and tone of voice (Wollert 2012). Barneyville adopts 174 | Proving Disparate Impact through Masculinities the consultant’s recommendations, and the city uses...


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