Shannon v. Pay 'N Save Corp.

Brachtenbach, J.

(concurring in part, dissenting in part) — I concur in the result because I agree that instruction 17, the statement of the "four-fifths" rule, is an impermissible comment on the evidence. However, I disagree with the majority's treatment of disparate impact analysis and the payment of expert witness costs.

Underlying my disagreement with the majority is a basic difference between the majority's and my understanding of the purpose of the discrimination statute. I believe the majority inaccurately dichotomizes potential interpretations of the statute; the majority endorses an interpretation of the statute which is solely concerned with eliminating intentional discrimination; it rejects, as do I, the opposite extreme: an interpretation of the statute which requires an employer to hire a racially and sexually balanced work force. However, the majority overlooks the middle ground. It does not acknowledge an interpretation of the statute which creates a duty in employers to examine their employment practices and attempt to eliminate those aspects of hiring and promotion systems which invidiously discriminate against minorities and women. International Bhd. of Teamsters v. United States, 431 U.S. 324, 364 , 52 L. Ed. 2d 396 , 97 S. Ct. 1843 (1977). Discrimination is too well rooted in our society to be eliminated merely by forbidding intentional bias. If the law is to have any meaning for those groups against whom discrimination has been aimed, the law must prohibit those methods of discrimination which have become institutionalized and no longer require the active bias of individuals.

First, I object to the majority's restriction of disparate impact analysis to cases in which objective selection criteria *740 are challenged. The use of certain selection criteria, whether they are subjective or objective, may have a disparate impact on a protected group. In a case involving hiring or promotions, disparate impact analysis should apply whenever a selection criterion is challenged. Disparate treatment analysis is required when the challenge is to the way in which selection criteria are applied. The majority's distinction between objective and subjective selection criteria is based on faulty reasoning in several federal cases. While we are guided by federal precedent in interpreting our discrimination statute, we should not be blind to their lapses in logic.

Disparate impact analysis allows a plaintiff to challenge facially neutral employment practices which have a disparate impact on a protected group. Griggs v. Duke Power Co., 401 U.S. 424, 430 , 28 L. Ed. 2d 158 , 91 S. Ct. 849 (1971). Unlike disparate treatment analysis, an employer's intent to discriminate is irrelevant to establishing a disparate impact claim. Griggs , at 432. A plaintiff may not simply point to underrepresentation of a protected group in an employer's work force and claim that the employer's general hiring or promotion system has a disparate impact, however. The plaintiff must identify a specific aspect of the selection process and prove that that facially neutral practice has a disparate impact. Spaulding v. UW, 740 F.2d 686, 707-08 (9th Cir.), cert. denied,_U.S._, 83 L. Ed. 2d 401 , 105 S. Ct. 511 (1984); Pouncy v. Prudential Ins. Co. of Am., 668 F.2d 795, 801 (5th Cir. 1982); Equal Empl. Opportunity Comm'n v. Federal Reserve Bank, 698 F.2d 633, 638-39 (4th Cir. 1983), rev'd on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 U.S. 867 , 81 L. Ed. 2d 718 , 104 S. Ct. 2794 (1984). Nor may a plaintiff identify as a facially neutral practice the fact that an employer utilizes subjective selection criteria. The use of subjective selection criteria is an accepted and sometimes necessary method of selecting employees. As a matter of policy, courts are unwilling to hold that their use alone is prima facie evidence of employment discrimination. Heag- *741 ney v. UW, 642 F.2d 1157, 1163 (9th Cir. 1981); Harris v. Ford Motor Co., 651 F.2d 609, 611 (8th Cir. 1981).

Thus, disparate treatment analysis is utilized to challenge alleged discriminatory bias for which the use of subjective criteria provides the opportunity. However, from this premise some federal courts incorrectly reason that only disparate treatment analysis should be utilized whenever a subjective selection criterion is challenged. Walls v. Mississippi Dep't of Pub. Welfare, 730 F.2d 306 , 321 (5th Cir. 1984); Spaulding v. UW, supra at 709. In rejecting the use of disparate impact analysis when a particular subjective criterion is challenged, these courts, as does the majority, fail to distinguish between a challenge to the use of subjective criteria in general and a challenge to the use of a particular subjective criterion. Similar to an objective selection criterion, a subjective selection criterion may have a disparate impact on a protected group even though the criterion is applied without bias. The only way to demonstrate the discriminatory effects of such a selection criterion, whether the criterion is subjective or objective, is through disparate impact analysis.

For example, prospective applicants may be subjectively evaluated as to how well they would "fit in" with other employees and customers. Having never worked with women or minorities, an employer's otherwise white male employees might not be as comfortable with women or minority applicants as with white male applicants. An impartial evaluator might correctly conclude that a woman or a minority would not "fit in" as well as other white male applicants. Or as here, an applicant may be subjectively evaluated as to her level of community service. Traditionally responsible for more household duties, working women may have less time for community service. An impartial evaluator might correctly determine that a woman applicant rates lower than a male applicant on this criterion. In both cases any discriminatory effect is caused by use of the criterion, not the subjective bias of the evaluator. See, e.g., Peters v. Lieuallen, 693 F.2d 966 , 970 n.2 (9th Cir. 1982).

*742 When a selection criterion is challenged, it would be inappropriate to use disparate treatment analysis to analyze the discriminatory effect because there need not be an intent on the part of the evaluator to discriminate. In addition, it simply does not make sense to analyze a challenge to a selection criterion under disparate treatment analysis. In a disparate treatment suit, an essential element of the plaintiff's case is that the plaintiff is qualified, i.e., meets the employer's selection criteria. Yet it is the legitimacy of the selection criteria that the plaintiff is challenging, whether the challenged criterion is subjective or objective. Hung Ping Wang v. Hoffman, 694 F.2d 1146, 1148 (9th Cir. 1982). Disparate impact analysis is the appropriate way to evaluate such selection criteria because it focuses inquiry on the effect of using the criteria and the employer's need to use the criteria. Thus, in determining whether to apply disparate impact or disparate treatment analysis, I would not distinguish between subjective and objective selection criteria. Instead, I would determine which method of analysis to apply to a particular case based on whether a challenge is made to the use of particular selection criteria or a challenge is made to the manner in which the selection criteria are applied.

I also take issue with the majority's analysis of the business necessity defense. Once a plaintiff has proven that a particular employment practice has a disparate impact on a protected class, an employer may justify the use of that practice by showing that the employment practice has a "manifest relationship to the employment in question." Griggs v. Duke Power Co., supra at 432. The federal courts have developed a variety of tests to determine whether a "manifest relationship" has been established. E.g., Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.) (practice must be "necessary to the safe and efficient operation of the business"), cert. dismissed, 404 U.S. 1006 , 30 L. Ed. 2d 655 , 92 S. Ct. 573 (1971); United States v. Jacksonville Terminal Co., 451 F.2d 418, 451 (5th Cir. 1971) (practice must be essential to the safe and efficient operation of the business); *743 Contreras v. Los Angeles, 656 F.2d 1267 , 1278 (9th Cir. 1981) (practice accurately predicts or significantly correlates with job performance).

The majority rejects the use of the test set out in Robinson v. Lorillard Corp., supra at 798, which requires an employer to show that a practice with a disparate impact is necessary to the safe and efficient operation of the business. In the face of a statutory directive to construe RCW 49.60 liberally to achieve its purpose, RCW 49.60.020, the majority has chosen a very lenient test of business necessity. The majority follows Contreras v. Los Angeles, supra, and requires only that an employer show that a challenged employment practice "accurately predicts or significantly correlates" with job performance.

In defense of this choice, the majority asserts that to require a more compelling justification for the use of an employment practice already proven to have a disparate impact "would impose an affirmative duty to hire a balanced work force". Majority, at 730. This is simply not the case. Disparate impact analysis focuses on the effects of the challenged selection criteria, not on the composition of the work force. A more stringent test for business necessity does not create a duty to hire particular applicants. At most, it would make it somewhat more difficult for employers to justify the use of selection criteria shown to have a disparate impact on protected groups and would more often require employers to substitute another selection criterion. Even if an employer's work force is "balanced," a particular employment practice with a disparate impact is subject to challenge. Connecticut v. Teal, 457 U.S. 440, 449-51 , 73 L. Ed. 2d 130 , 102 S. Ct. 2525 (1982).

The test chosen by the majority does very little to further the discrimination statute's purpose of eliminating all forms of discrimination in employment. A selection criterion may be said to "accurately predict" or "significantly correlate" with job performance if there is sufficient evidence to indicate that the apparent statistical relationship between a selection criterion and job performance is not *744 due to chance. This test says nothing about the strength or importance of the relationship between the selection criteria and job performance. A 2 percent correlation is significant if a statistician's sample size is large enough to allow the statistician to estimate with confidence such a small correlation. In setting forth this test, the majority ignores the important difference between the reliability of a particular selection criterion as a predictor of a sought-after skill or quality in an employee and the importance of the skill or quality sought to job performance.

In addition, I have practical objections to the use of the test established by the majority as a jury instruction. The test relies too heavily on statistical terminology. Presumably each side will present experts who will testify that a particular selection criterion does or does not significantly correlate with job performance, leaving the jury to determine only which expert to believe. I prefer a jury instruction which establishes a nontechnical standard against which the jury may independently evaluate the experts' statistical evidence. Such an instruction also allows for those cases in which evidence is not technical.

Once a plaintiff has proven that a selection criterion has a disparate impact on a protected group, I would require the employer to identify the skill or characteristic which the challenged selection criterion is alleged to select. The employer would then have to show (1) that the possession of this skill or characteristic by the employee is necessary to the safe or efficient operation of the business and (2) that the selection criterion is a reliable method of determining if the applicant possesses the skill or characteristic.

Finally, I disagree with the majority's refusal to allow Shannon to recover expert witness fees. I agree that expert witness fees are not a "cost of suit". However, in addition to allowing a plaintiff to recover actual damages, attorney's fees and costs, RCW 49.60.030(2) authorizes the award of "any other remedy authorized by this chapter or the United States Civil Rights Act of 1964", 42 U.S.C. § 2000 (a) et seq. The federal courts have long included the recovery of *745 expert witness fees among the remedies available to a plaintiff prevailing in a Title VII suit. E.g., Thornberry v. Delta Air Lines, Inc., 676 F.2d 1240, 1244-45 (9th Cir. 1982). Our statute should also be interpreted to allow a plaintiff to recover expert witness fees. To hold otherwise would conflict with the intent of the statute to allow a plaintiff to recover all losses resulting from an employer's discrimination. Such an award is, of course, within the discretion of the trial court. The fees must be reasonable and should be awarded only if an expert witness was necessary to prosecute the case.

Utter and Pearson, JJ., concur with Brachtenbach, J.