EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Disparate Impact of Education Requirements

February 19, 2010

[Address]

Dear ____:

This letter is in response to your December 21, 2009 inquiry to the U.S. Equal Employment Opportunity Commission (EEOC) concerning proposed changes to the qualification standards for Public Health Director jobs. Specifically, you asked whether requiring a master’s degree, without the possibility of substituting experience or other education, would violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII).

Discussion

As you are aware, EEOC enforces, among other laws, Title VII, which bars discrimination in employment on the bases of race, color, sex, national origin, and religion. In many cases brought under Title VII, the inquiry will concern whether an employer intended to discriminate against a person on the basis of his/her protected status.

However, even where an employer does not intend to discriminate, it may be found liable under Title VII if it uses a facially neutral practice that has a significant disparate effect on a protected group, unless the practice is “job related and consistent with business necessity.”¹ Even if the practice is job-related and consistent with business necessity, the employer may nonetheless be liable if there is an alternative practice “that would be equally effective in predicting job performance, but that would not disproportionately exclude the protected group.” EEOC, EMPLOYMENT TESTS AND SELECTION PROCEDURES (2008), http://www.eeoc.gov/policy/docs/factemployment_procedures.html (Fact Sheet); see also 42 U.S.C. § 2000e-2(k). This is called “disparate impact” discrimination.

One of your Directors suggested that a strict master’s degree requirement for Public Health Directors would result in a significantly disproportionate exclusion of protected racial minorities. If someone could show—most likely using statistical evidence—that the strict requirement had such an adverse effect, and that the effect was significant, adopting the requirement could subject [the employer] to liability for disparate impact discrimination unless (a) [the employer] could show that the requirement is job-related and consistent with business necessity, and (b) the plaintiff could not show that a less discriminatory requirement would have been equally effective in predicting job performance.

[The employer] could show that a strict master’s degree requirement is job-related and consistent with business necessity by showing that it is “necessary to the safe and efficient performance” of the Public Health Director job. See Fact Sheet. Whether [the employer] could make such a showing depends on the specific duties of the job. Two relevant considerations are how effectively a master’s degree predicts Public Health Director job performance, and whether the strict degree requirement applies to other people holding substantially similar jobs. Assuming that the employer could show that the master’s degree requirement was “job related and consistent with business necessity,” an employer might nevertheless be liable if there is an available alternative that would equally effectively meet its business objectives. Accordingly, assuming this requirement has a disparate impact on racial minorities, the employer is advised to determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. See Fact sheet, Employer Best Practices.

I hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion of the EEOC under Title VII or any other statute.

Sincerely,

/s/

Aaron Konopasky
Attorney-Advisor
Office of Legal Counsel
Equal Employment Opportunity Commission

Footnotes

¹ In addition, if the practice has a disparate impact on a person or persons with disabilities, the employer is liable for discrimination under the Americans with Disabilities Act unless it can justify the practice under that statute. See 42 U.S.C. § 12112(b)(6). Similarly, if the practice had a disparate impact on workers over the age of 40, the employer is liable for discrimination under the Age Discrimination in Employment Act unless it can justify the practice under that statute. See 29 U.S.C. §§ 623(a), (f).

This page was last modified on March 29, 2010.

Return to Home Page