Posted: May 24th, 2022

Disparate Treatment Research paper

Disparate Impact/Disparate Treatment case Study

Smith v. City of Jackson

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The City of Jackson, Mississippi adopted a revised pay plan granting raises to all city employees in the Police and Fire Departments. Under the revised plan, officers and dispatchers with fewer than five years tenure received proportionately greater raises than employees who had more than five years tenure. Azel Smith and twenty-nine other police department employees over the age of 40 sued Jackson, Mississippi, and the city police department in federal district court pursuant to the Age Discrimination in Employment Act (ADEA). The Plaintiffs made two claims: (1) disparate treatment, i.e., the pay plan was intentionally discriminatory; and (2) disparate impact, i.e., the pay plan was unintentionally discriminatory. The trial court ruled for city on both claims. The Fifth Circuit Court of Appeals compared the text of the ADEA to Title VII, noting that 623(f)(1) of the ADEA allows employers to escape liability if the adverse employment action is “based on reasonable factors other than age.” The court found that this provision is a “clear textual difference” between the ADEA and Title VII. When considered with the whole text of the ADEA and the legislative intent, the Fifth Circuit determined that the ADEA was not intended to cover disparate effects claims and affirmed the trial court. The Supreme Court had previously held that disparate impact claims may be brought under Title VII, but had not yet determined whether disparate impact claims can be brought under the ADEA.

The question presented was whether a disparate impact claim, a claim alleging unintentional discrimination, can be made under the Age Discrimination in Employment Act of 1967 (ADEA). In an 8-0 opinion delivered by Justice John Paul Stevens, the Court held that ADEA authorized recovery in disparate-impact cases, but that in this case petitioners failed to set forth a valid claim. The Court relied on its 1971 decision in Griggs v. Duke Power, where the Court first authorized disparate-impact claims brought under Title VII of the Civil Rights Act of 1964. The Court reasoned that the ADEA authorized disparate-impact claims in cases similar to Griggs, because the language of Title VII and ADEA was virtually identical. However, ADEA was narrower than Title VII and allowed an otherwise prohibited action where the discrimination was based on reasonable factors other than age. The employees in this case failed to identify any specific practice within the pay plan that had an adverse impact on older workers. Further, the city’s plan was based on reasonable factors other than age. “The disparate impact was attributable to the City’s decision to give raises based on seniority and position. Reliance on these factors is unquestionably reasonable given the City’s goal.”

Though the decision favoring the city was unanimous, it is misleading because the key question before the Court was resolved 5-4 in favor of the position argued by Smith; namely that disparate impact matters in age discrimination cases. While allowing disparate impact age cases, the Court also held that the scope of liability in age cases is narrower than under Title VII, and that practices that are based on reasonable factors other than age are lawful despite adverse impact. The plurality read EEOC regulations as consistently interpreting the ADEA to authorize recovery under a disparate-impact theory. When the employee alleges discrimination, the employer proffers a nondiscriminatory reason for its action, and the employee must show that is simply not reasonable.

Jespersen v. Harrah’s

Darlene Jespersen was a bartender at Harrah’s Reno for nearly 20 years. One thing upon which everyone agrees is that she was a really good bartender. Her supervisors commented that she was “highly effective,” that her attitude was “very positive,” and that she made a “positive impression” on Harrah’s guests. Harrah’s customers repeatedly praised Jespersen on employee feedback forms. In February of 2000, Harrah’s, in its Beverage Department, initiated its “Personal Best” program and forced it upon employees of that department, including Jespersen. The policy required women to wear foundation, concealer, or powder, blush, mascara, and to make sure that they have lip color on at all times. Not only did women have to wear makeup, they were required to have a makeover by an image consultant. Once the employee and the image consultant had devised the employee’s “personal best” look, then the employee’s picture would be taken, and their appearance would be expected to conform to the picture each day he or she came to work. Jespersen refused to comply with the makeup requirements. She was given 30 days to apply for a new position that did not have a makeup requirement, but she refused to apply for a new position and was subsequently terminated. Jespersen filed suit against Harrah’s alleging that the policy of requiring female beverage servers to wear makeup constituted disparate sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

In granting Harrah’s motion for summary judgment, and dismissing the complaint, the district court found that the appearance policy did not violate Title VII because they did not discriminate on the basis of characteristics associated with her sex and imposed equal burdens on both sexes. The 9th Circuit Court agreed with the district court, finding that if they were to take judicial notice of the fact that the application of makeup requires some expenditure of time and money, the plaintiff would still have the burden of producing some evidence that the burdens associated with the makeup requirement are greater than the burdens the policy imposes on male bartenders. “We have previously held that grooming and appearance standards that apply differently to women and men do not constitute discrimination on the basis of sex.” In addition, the court held that Harrah’s policy did not conflict with the 1989 Supreme ruling in which a female associate, who was perceived as too “macho,” successfully challenged her exclusion from an accounting firm’s partnership by noting the Supreme Court, “did not address the specific question of whether an employer can impose sex-differentiated appearance and grooming standards on its male and female employees.”

This decision illustrates that employers may have policies that contain general appearance standards. An employer is allowed to enforce reasonable grooming standards on an employee as long as they do not impose unequal burdens on either sex. Thus, an employer should have a clear appearance and conduct policy in place, especially if the policies have the potential of creating issues regarding an employee’s gender. They must avoid grooming standards that are different for men and women, making them as gender-neutral as possible. If the policy requires non-changeable characteristics, they will run into problems, or lawsuits, or both. If there is a necessary difference, the employer must treat the standard as if it is an accountant’s ledger in which the requirements for males equal the requirements for females.


Azel P. Smith; Jacqueline Butler; Ruthie Porter; Gloria Burns; Willie Allen; Et Al Plaintiffs – Appellants V. City of Jackson, Mississippi; Police Department of the City of Jackson, Mississippi Defendants – Appellees. United States Court of Appeals for the Fifth Circuit. No. 02-60850. November 13, 2003.

Darlene Jespersen, Plaintiff-Appellant, V. Harrah’s Operating Company, Inc., Defendant-Appellee. United States Court of Appeals for the Ninth Circuit. No. 03-15045. December 28, 2004.

Smith, Azel, et al. v. City of Jackson, Miss., et al. United States Supreme Court. No. 03-1160. March 30, 2005.

Azel P. Smith; Jacqueline Butler; Ruthie Porter; Gloria Burns; Willie Allen; Et Al Plaintiffs – Appellants V. City of Jackson, Mississippi; Police Department of the City of Jackson, Mississippi Defendants – Appellees. United States Court of Appeals for the Fifth Circuit. No. 02-60850. November 13, 2003, p. 14.

Smith, Azel, et al. v. City of Jackson, Miss., et al. United States Supreme Court. No. 03-1160. March 30, 2005, p. 11.

Darlene Jespersen, Plaintiff-Appellant, V. Harrah’s Operating Company, Inc., Defendant-Appellee. United States Court of Appeals for the Ninth Circuit. No. 03-15045. December 28, 2004, p. 8.

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