Ward’s Cove: Salmon cannery company Operates only in summer

1. Wards Cove v. Antonio (1989) • Ward’s Cove: • Salmon cannery company • Operates only in summer • Location of salmon runs vary as does the number of employees in each • site • Two general types of jobs • 1) Cannery (mostly minority, hired via a union, live near job sites) • 2) Noncannery (skilled position, mostly White, higher paid) • Separate facilities for each job category

2. Wards Cove v. Antonio • Key Points: • Evidence for adverse impact is useable to demonstrate a prima facie case (both lower courts rejected a disparate treatment claim) • What comparisonis allowed to show disparate impact? • Plaintiff used: % minorities in unskilled skilled vs. • % non-minorities in skilled jobs • Supreme Court --- Appropriate comparison is: • % majority vs. % minority in skilled jobs • Racial composition of those in the "relevant" labor market who are qualified • and have an interest in performing the job(s) in question

3. Plaintiff must identify specificemployment practice that causedthe statistical disparity (consistent with plurality in Watson v. Ft. Worth Bank, 1989) • "Here, respondents have alleged that several "objective" employment practices (e.g., nepotism, separate hiring channels, rehire preferences), as well as the use of 'subjective decision making' to select non-cannery workers had a disparate impact on non-whites...Respondents will... have to demonstrate that the disparity they complain of is the result of one or more of the employment practices that they are attacking here, specifically showing that each challenged practice has a significant disparate impact on employment opportunities."

4. Wards Cove v. Antonio (cont.) C) Company recordkeepingresponsibility "...employers...are required to maintain...records or other information which will disclose the impact which its tests and other procedures have upon employment opportunities or persons by identifiable race, sex, or other ethnic groups...This includes records concerning 'the individual components of the selection process' where a statistical disparity in the selection rates of whites and nonwhites...Plaintiffs as a general matter will have the benefit of these tools to meet their burden of showing a causal link between challenged employment practices and racial imbalances in the workforce..."

5. D) Burdenof Proof Regarding earlier court opinions on this issue: "...they should have been understood to mean an employer's production-- but not persuasion burden." Faced with a prima facie case the employer may now "articulate" rather than "prove" that it had a legitimate business reason for its practice. “The touchstone of this inquiry is a reasoned review of the employer’s justification for his use of the challenged practice ... there is no requirement that the challenged practice be ‘essential or indispensable‘ to the employer’s business for it to pass muster; this degree ofscrutiny would be almost impossible for most employers to meet.” Standard = Legitimate and NOT insubstantial???

6. ~ Adverse Impact Process & Wards Cove ~ Step 1: The challenger must identify a specific employment practice that caused the dsicrimination in question (disproportionately excludes protected group members) Step 2: The company must demonstrate that the challenged practice isjob relatedand consistent withbusiness necessity Wards Cove: The company must produce evidence (articulate -- not prove) that it had a legitimate reason for their employment practice Step 3: The challenger must prove that an equally valid, job-related practice exists with less (or no) adverse impact