In this Article, Mr. Rose addresses the conflict amongst the federal courts of appeals regarding the issue of whether a system committing decisionmaking in hiring, promotion, or pay to the discretion of other subjective judgments of supervisors is unlawful under federal equal employment opportunity law when it is not valid or necessary and has a discriminatory impact against minorities or women, or whether it is lawful in the absence of purposeful discrimination. The author analyzes the this issue in light of section 703 of the title VII of the Civil Rights Act of 1964 and applicable U.S. Supreme Court decisions in the area. Specifically, the author focuses his attention on Watson v. Fort Worth Bank & Trust, a case in which Supreme Court granted certiorari to resolve the conflict. The Article reviews the nature of subjective or discretionary decisionmaking, the treatment of the issue in the legislative history and the regulations and guidelines of the agencies having enforcement responsibilities, the arguments before the Court in Watson, and the possible consequences of the Court's decision on employer practices.
David L. Rose,
Subjective Employment Practices: Does the Discriminatory Impact Analysis Apply,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol25/iss1/5