Disparate Impact and Treatment by the Tva

DUNLAP V. TENNESSEE VALLEY AUTHORITY

Dunlap v. TVA

Dunlap v. Tennessee Valley Authority (2008)

Dunlap v. Tennessee Valley Authority (2008)

Explain why the plaintiff's disparate impact claim failed?

A claim of disparate impact implies that the employer (defendant) unintentionally discriminated against the job applicant (plaintiff) (Seiner, 2013, p. 287). Under Title VII, any hiring practice that is fair in form, but through its application is effectively discriminatory, is illegal (Dunlap v. Tennessee Valley Authority, 2008). The protected demographics under Title VII include racial minorities, religious minorities, and women. Mr. Dunlap's status as an African-American fulfills this requirement. In addition, the hiring practice must be unrelated to the open position and inconsistent with business necessity to be successfully challenged under Title VII. In other words, a claim of employment discrimination should provide evidence that the discriminatory practices were unrelated to the job and not required by the business. Mr. Dunlap sued the Tennessee Valley Authority (TVA) alleging disparate impact and treatment, the only two possible claims under Title VII for discriminatory hiring practices.

Proof of intent is not essential to a claim of disparate impact, only that the hiring practice disproportionately and adversely affected a protected group for reasons other than business necessity (Dunlap v. Tennessee Valley Authority, 2008). Supreme Court jurisprudence in disparate impact has established a three-part, burden-shifting test. The first part of this test requires the plaintiff to present a prima facie case of discrimination. If the justices agree that that the plaintiff may have been discriminated against based on the evidence presented, then the defendant is required to show that the discrimination resulting from the hiring practice was based on business necessity. The third and final part of the test requires the plaintiff to show that alternative hiring practices would have fulfilled the needs of the business without discriminating against a protected group.

The criteria cited by the appeals court for establishing a prima facie case of discrimination are the following: (1) clear identification of the discriminatory hiring practice and (2) a statistical analysis proving protected groups suffered adversely as a result (Dunlap v. Tennessee Valley Authority, 2008). Based on the evidence before the circuit judges it was unclear which employment practice represented the plaintiff's prima facie evidence, whether it was the hiring practice used in 2000 when Dunlap was ranked below the boilermakers hired or the hiring practices that had been in use system-wide by the TVA for decades. This lack of specificity, along with testimony relating only to the hiring of boilermakers in 2000, made it hard for the judges to conclude that a prima facie case of unintentional discrimination (disparate impact) had been adequately presented in the lower court. For this reason, the appeals court overturned the lower court's finding of disparate impact.

2. Explain why the plaintiff's disparate treatment claim succeeded

A claim of disparate treatment under Title VII implies intentional discrimination against a protected group (Seiner, 2013, p. 287). The appeals court used the McDonnell Douglass framework established by the Supreme Court in 1973, which requires the plaintiff to establish a prima facie case of discrimination. In response, the defendant must show that that the hiring practice was legitimate and nondiscriminatory. The plaintiff must then show that the defendant's hiring practice is actually pretextual because it hides discriminatory practices as defined under Title VII. According to the appeals court, the critical element in the plaintiff's claim is proof of pretextual motive. Dunlap successfully established a prima facie case of discrimination based on his being (1) a member of a protected minority group, (2) qualified for the open positions, and (3) treated differently than equivalent applicants who are not protected under Title VII. Some of the evidence Dunlap presented included giving higher scores to similar or less qualified White applicants for their technical expertise and safety records. In addition, the hiring committee decided to allocate 70% of the final score to the interview, the most subjective part of the hiring process. The hiring committee then engaged in the dubious practice of score balancing, which amounted to tweaking applicant scores post-interviews.

The TVA attorneys responded by presenting the hiring matrix used to establish the interview scores, which revealed Dunlap did not score high enough to remain in contention for the open positions (Dunlap v. Tennessee Valley Authority, 2008). Given the obvious manipulation of the scores during score balancing and the high weight given to the interview, the circuit judges agreed that the hiring process used by the TVA hiring committee provided ample opportunities to fix the outcome and had in fact done so. As a result, the appeals court upheld the district court's ruling that the TVA was guilty of disparate treatment under Title VII.