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99 Harv. L. Rev. 655 (1985-1986)
Bazemore v. Friday: Salary Discrimination under Title VII

handle is hein.journals/hlr99 and id is 673 raw text is: CASE COMMENT BAZEMORE V. FRIDAY: SALARY DISCRIMINATION UNDER TITLE VII Title VII of the Civil Rights Act of 19641 forbids employers to make employment decisions that discriminate between individuals be- cause of race, color, religion, sex, or national origin.2 Plaintiffs in title VII suits can prove liability under either of two theories: disparate treatment or adverse impact.3 In Bazemore v. Friday,4 the Court of Appeals for the Fourth Circuit interpreted title VII as not requiring an employer to eliminate salary disparities that stem from a discrim- inatory wage scale preexisting the Civil Rights Act of 1964. The court concluded that the lingering effects of such pre-Act discrimination could not support the claims of black employees that they were subject to a pattern or practice of disparate treatment.5 The court also based its dismissal of the plaintiffs' claims of salary discrimination on the grounds that the statistical evidence presented by the plaintiffs did not include all measurable variables that might have accounted for the observed salary disparity.6 Having rejected the plaintiffs' claims under disparate treatment analysis, however, the court should have gone on to consider their claims under the adverse impact model.7 1 42 U.S.C. §§ 200oe-200oe-i7 (1982). 2 See id. § 2000e-2(a). 3 See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977). In disparate treatment analysis, a plaintiff must prove intentional discrimination. Although proof of illicit motive is essential, it may be inferred from a sufficient showing of the disparate treatment of comparably qualified employees. In adverse impact analysis, a plaintiff must prove that a facially neutral employment practice that is not justified by business necessity has a disproportionate impact on members of a particular group. See id. 4 751 F.2d 662 (4th Cir. 1984), aff'g Bazemore v. Friday, No. 2879 (E.D.N.C. Aug. 20, 1982), cert. granted, 54 U.S.L.W. 3328 (U.S. Nov. 12, 1985) (No. 85-93); 54 U.S.L.W. 3318 (U.S. Nov. 12, i985) (No. 85-428). 5 See id. at 670. Pattern or practice claims are class-wide allegations of discrimination in which plaintiffs seek to establish that discrimination was the company's standard operating procedure. See Teamsters, 431 U.S. at 336 & n.6. 6 See 751 F.2d at 672. After an evenly divided panel of the court of appeals denied a rehearing en banc, both the private plaintiffs and the Justice Department filed petitions for certiorari. See 54 U.S.L.W. 3084 (U.S. Aug. 20, 1985) (No. 85-93); 54 U.S.L.W. 3178 (U.S. Oct. I, 1985) (No. 85-428). The private plaintiffs sought certiorari on five issues: whether salary disparities arising from pre-Act discrimination are actionable, the adequacy of the plaintiffs' statistical evidence, the denial of class certification, the existence of discrimination in 4-H and homemaker club membership, and the existence of discrimination in hiring and promotion. The Justice Department sought review of only the pre-Act issue. On November 12, 1985, the Supreme Court granted both petitions for certiorari and consolidated the cases. See 54 U.S.L.W. 3328 (U.S. Nov. 12, 1985) (No. 85-93); 54 U.S.L.W. 3318 (U.S. Nov. 12, 1985) (No. 85-428) This Comment focuses on the pre-Act and statistical evidence issues. 7 See infra pp. 666-67.

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