Title VII and the Applicability of Disparate Impact Analysis to Subjective Selection Criteria

Discrimination-free employment practices have been mandated in this country for over twenty years, yet all members of American society do not share equal employment opportunities. One need only compare the unemployment rate of blacks to whites to conclude that complexion bears a remarkable relationship to employment experiences. A reminder that the earning power of American women is vastly different than that of men is evidence enough that gender is a factor in employment decisions. Most employers have abandoned their more overtly discriminatory practices such as outright refusals to employ members of racial minorities or women, termination of a woman on learning of her pregnancy, and separate locker rooms for whites and blacks. It is even generally acknowledged that criteria such as education requirements and height and weight minima frequently have a disparate impact on members of protected groups and thus violate anti-discrimination statutes. Other employment practices may have equally discriminatory effects, but because they are not so obviously linked to discrimination they have not been as easily challenged. Many employers use what some characterize as subjective criteria to make hiring and promotion decisions. Appearance, articulateness, fitness, ability to lead, friendliness, and aggressiveness are all examples of factors which sometimes form the basis for employment judgments. When subjective criteria are manipulated to mask intentional discrimination, their application is outlawed. Those same criteria, however, may also be utilized without intentional bias. If blacks and women are not as articulate, friendly, or aggressive as white men, the unbiased application of subjective criteria may have a disparate impact which discriminates as effectively as education prerequisites and other objective devices. It is the thesis of this Article that subjective criteria in employment decisions must be scrutinized just as any other type of criteria which may have a disparate impact on members of minority groups and women. The use of subjective criteria constitutes a subtle barrier to equal employment opportunity as invidious as more blatant practices