Question About Race Discrimination Law

Here’s a question for all you bright-eyed, bushy-tailed law students and JD’s from a guy who’s a little rusty on his legal research.

As I understand the law of discrimination, if an employer adopts a requirement that has a “disparate impact,” that employer is required to show a “business necessity” for the requirement.

Are there cases dealing with a college degree, or other educational requirement, for the position of sales representative? Someone told me to look at Griggs v. Duke Power, but that didn’t deal with sales reps. If anyone happens to be taking a labor law class and has seen a case on this point recently, I’d be very grateful for a cite.

As always, thanks in advance!!

It might help if you describe the problem you’re trying to solve. If it’s along the lines of “my customers don’t like black people, so it’s a business necessity for me not to hire a black person,” then I will confidently take a wild guess and say that that argument isn’t going to fly.

Honestly, I’m not too interested in people’s thoughts about what the law might be or should be. I’m interested in authorities on the subject, such as case cites. But thanks anyway.

IANA lawyer, but I deal with this stuff. My understanding is that case sites are largely not relevant, because each case is handled on its own peculiar situation.

That is, what may be disparate impact in one situation may NOT be disparate impact in another situation. And what may be a business necessity (the technical term is “bona fide occupational qualification” or BFOQ) in one situation may not be in another. There is a huge body of case law, and the burden of proof rests with the employer to prove something is a BFOQ. Generally speaking, the courts and the EEOC have interpreted “business necessity” fairly narrowly.

Preferences of employer, coworkers, or clients are irrelevant and do not constitute BFOQs.

In short, an educational requirement such as college degree may not have illegal discriminatory impact for a job such as high-tech medical device sales, but might for a job such as shoe salespeson.

Griggs vs Duke Power was the most significant EEO case ever, and set down the principles applied in other cases. You might look at McDonnell Douglas vs Green (1973) (411 US 567) which describes the legal standard for circumstantial evidence of adverse impact. There’s also Watson vs Fort Worth Bank & Trust (1988) (108 S. Ct. 299) dealing with employment interviews and subjective vs objective assessment procedures.
For those reading this who may want explanation: under U.S. law, a practice can be discriminatory in and of itself (such as, “We don’t hire Koreans.”) – this is called “disparate treatment” and is blatantly illegal. However, a practice that appears to be non-discriminatory on the surface could still have the effect of discrimination; this is called “disparate impact.” Thus, the law prohibits both open and deliberate discrimination (disparate treatment) and also practice that seem fair in form but are discriminatory in operation (disparate impact.)

EXAMPLE: A company has a policy of only hiring people for a certain job who live within a ten minute drive of the office. There are very very few blacks in that area, and so the effect of the hiring practice is disciminatory – “disparate impact” – even though the practice itself is not discriminatory per se.

The company defense might be that this is, in fact, an essential job requirement,a bona fide occupational qualification (BFOQ): that the person must be able to get to the office with ten minutes in an emergency. BFOQs are exempt from the discrimination laws (Obvious example: if you want to hire an actor to play the role of George Washington in a movie, you can refuse to audition blacks, Asians, females, etc … and this is not viewed as illegal discrimination, since having a white male actor for the role is an essential job requirement.)

Another exemption from the disparate impact type of discrimation includes seniority-based programs. Males tend to have more seniority than females because many females take time off to raise a family; thus, a seniority-based program is exempt from the disparate impact test. (A seniority-based system that involved disaprate treatment or an intention to discriminate, however, would be illegal.)

No cite I’m afraid, but this reminds me of a report I read in the newspaper a few years ago. Basically, there is a white chocolate bar in the UK called a “Milky Bar”, and for years the company have advertised using a fictional character, “The Milky Bar Kid”. This character became a household name and was basically a very fair-haired kid with glasses who would be shown saving the day from a host of bad things in the adverts. As the child actor would grow up and get too old, the company would hold auditions and select a similar looking kid to take over the advertising. It was at one of these auditions that a black child was told he was not what they were looking for (they were looking for a white kid with very fair blonde hair and glasses) and his parents tried to sue the company for racial discrimination. I don’t recall what happened but I seem to remember the parents lost the case or it was thrown out.

I remember wondering at the time if white kids turned away for having dark hair would be able to sue too! This, IMHO, is a case where the company had every right to discriminate. After all, it wasn’t really discriminating against a race it was discriminating against ANYONE, of any race, who didn’t fit the exact appearance they were looking for.

Honestly, I wasn’t giving you my thoughts about what the law might or should be. I was honestly asking you to describe the problem in more detail because, as Dex said, this is a complex area of the law. It’s hard even for a lawyer to answer a question that hasn’t been asked in sufficient detail. You’re welcome anyway.

Sorry if my response seemed snippy, but it seemed to me you were going down that road - getting the facts, and then giving a general opinion of the applicable law.

In any event, I rolled up my sleeves this afternoon, went down to the library and looked up what I needed. Thanks again all.

So, are you going to share your findings? … or were you just asking us to do your homework for you? < grin >

The main authority I found was EEOC Ruling 70-402, which held that a college degree requirement for a sales rep position inappropriately discriminated against blacks.

And yeah, I was hoping for a freebie. heh.

By the way, I agree with you that these are fact-sensitive questions. A college degree requirement might be totally appropriate in some situations and not in others. But for my purposes, EEOC Ruling 70-402 will be helpful.

Thanks again.

Yeah, I have not looked up your reference, but I have to assume that when you said “which held that a college degree requirement for a sales rep position inappropriately discriminated against blacks.” … that you really MEANT to say “which held that a college degree requirement for a particular sales rep position in this particular company or situation inappropriately discriminated against blacks.” (Italics are my addition/correction to your statement.)

The courts or EEOC in ruling on a particular situation would normally want proof that there was disparate impact – not necessarily easy. And the company’s defense would certainly be BFOQ.

Racer, I have no idea how the rules work in the U.K. Common sense seems to hold more sway in the U.K., where the literal wording of the law holds more sway in the U.S. My other favorite situation would be a Lutheran Church looking for a new pastor… imagine if they had to accept Hindu, Buddhist, Catholic, and Jewish applicants!

Sorry to jump into a grammatical debate, but I think my use of the singular case and the past tense made my description clear enough.

i.e. I said “a college degree requirement for a sales rep position inappropriately discriminated against blacks” NOT “college degree requirements for sales rep positions inappropriately discriminate against blacks”


Perhaps, but for my purposes, EEOC Rule 70-402 will be helpful. Feel free to e-mail me if your curious about the situation. Thanks again for your input.