|Title||The future of disparate impact in Britain and the United States: shoot the Wards Cove quota myth and recognize plantation economy cases|
"Librarians wanted - applicants must be over six feet tall" is a subtle way of achieving a discriminatory goal. Since the seminal case of Griggs v Duke Power , decided by a unanimous Supreme Court in 1971, the United States judiciary has, using disparate impact theory, recognised such cases as legally actionable. Case law also recognised some (but not all) discriminatory subjective hiring practices (such as excessive discretion given to one manager), but stopped short, in Wards Cove v Atonio, of recognising "plantation economy" cases, where there is a racially stratified workforce with no identified specific cause. In the meantime, the British Parliament followed Griggs by outlawing indirect discrimination in the Sex Discrimination Act 1975 and the Race Relations Act 1976. However, after some deference to the spirit of Griggs in the early years, the British judiciary gave the statutory definition the narrowest interpretation. So much so, that in recent years, a new statutory definition was introduced to reverse the effect of these cases. In liberalising the law, the new definition opens the way to challenge subjective hiring practices, and possibly the plantation economy cases that were rejected in Wards Cove. For the first time British anti-discrimination law has the opportunity of advancing on its American model. Central to this is overcoming the objections made in Wards Cove . The underlying and surviving reasoning of the Wards Cove decision is that to recognise these cases would force employers to adopt quotas. This paper will show that all discriminatory subjective hiring practices should be actionable and that the Wards Cove quota reasoning is technically flawed and a fiction. Further, it will demonstrate positive reasons why plantation economy cases should be recognised.
|Keywords||Disparate Impact/Indirect Discrimination, Plantation Economies, Quota Fear, Subjective Hiring Practices, New Definitions of Disparate Impact, Wards Cove v Atonio, Griggs v Duke Power, Perera v Civil Service Commission|
|Journal||International Journal of Diversity in Organisations, Communities and Nations|
|Web address (URL)||http://ijd.cgpublisher.com/product/pub.29/prod.71|