Prefatory note added November 30, 2014:Subsequent treatments of the subject of this page may be found in Section E of my September 20, 2013 University of Kansas School of Law Faculty Workshop Paper “The Mismeasure of Discrimination” and in Argument Part I of my November 17, 2014 amicus curiae brief filed in Texas Department of Housing and Community Development, et al. v.The Inclusive Communities Project, Inc., Supreme Court No. 13-1731.
This subpage is related to the Less Discriminatory Alternative – Procedural subpage of the Disparate Impact page of jpscanlan.com. That subpage treats anomalies in the procedure for establishing liability on the basis of the existence of a less discriminatory to a challenged practice. This page concerns the determination of what is a less discriminatory alternative.
When an entity’s practice causes a disparate impact on a protected group, liability often will turn on whether there exists a less discriminatory alternative that equally serve’s the entity’s interest. But given that virtually no one dealing with the issue understand the statistical pattern whereby the rarer an outcome the greater tends to be the relative difference in experiencing it and the smaller tends to be the relative difference in avoiding it – the principal subject of the Scanlan’s Rule page (SR) of this site – few appreciate the difficulty of determining what is a less discriminatory alternative.
The issue is simple enough with employment testing. It is well known that lowering a test cutoff tends to reduce relative differences in pass rates. For that reason, lowering a cutoff is deemed to reduce the discriminatory impact of an employment test. And, for reasons explained on the Employment Tests subpage of SR, lowering of cutoffs may properly be deemed to reduce the impact of an employment test so long as test scores do not dictate who is selected from among persons who pass the test.
But few realize that lowering a test cutoff tends to increase relative differences in failure rates, or that, in like manner, reducing the frequency of any adverse outcome tends to increase relative differences in experiencing it. Putting less discriminatory alternatives aside for a moment, the failure to understand such tendency creates problems appraising disparate impacts in the first place.
Such problems are illustrated, for example, in the many places where large relative differences in adverse outcomes rates (or high disadvantaged group representation among persons disqualified by a criterion) are assumed to be the consequence of stringent criteria. As discussed in the Discipline Disparities and the Lending Disparities, such differences (or disproportionate representations) are smaller than they would be with more lenient standards.
But anytime a disparate impact is appraised in terms of relative differences in adverse outcomes, what typically would be deemed the obvious less discriminatory alternative would tend to increase the relative difference in adverse outcomes. “The Perils of Provocative Statistics,” Public Interest (Winter 1991) treats a situation where those challenging to a teacher competency test on the basis of the disproportionate disqualification of black teachers maintained that the cutoff score was too high. But a lower cutoff would have increased the relative difference in disqualification rates. See also the varied issues treated in “Getting it Straight When Statistics Can Lie, Legal Times, June 28, 1993, and “An Issue of Numbers” (National Law Journal, Mar. 5, 1990), some of which are summarized on the Discipline Disparities,
The April 25, 2012 EEOC Enforcement Guidance styled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (Section V.C) merely states that “if an employer successfully demonstrates that its policy or practice is job related for the position in question and consistent with business necessity, a Title VII plaintiff may still prevail by demonstrating that there is a less discriminatory ‘alternative employment practice’” that serves the employer’s legitimate goals as effectively as the challenged practice but that the employer refused to adopt.” It offers no guidance on how one would determine that the practice is less discriminatory. But challenges to arrest or conviction records commonly describe the impact in terms of relative differences in adverse outcomes and the things that typically would be deemed less discriminatory alternatives – i.e., things that would reduce overall disqualification rates – generally would increase relative differences in adverse outcomes. Those guidelines may be the subject of a separate subpage.