The 4/5ths Rule

The 4/5th's rule is contained in the 1978 Uniform Guidelines for Employee Selection Procedures jointly published by the EEOC, the Civil Service Commission, the Dept. of Labor, and the Justice Department. The Supreme Court had given an earlier version of the Guidelines (published only by the EEOC) "deference of law," which means that it considered the Guidelines to be equal to law. This was granted in Albemarle Paper Company v. Moody (1975) in which the courts defined what it would accept as a properly done validity study (one done for the job for which the test is used).

In Griggs v. Duke Power, (1971) the first test of the CRA of 1964 was made. This is where "adverse impact" was defined, and included specifications for what was to be considered as evidence of adverse impact. The Prima Facie evidence that the plaintiff must present was statistical evidence showing that the 4/5ths rule had been violated. In other words, if you can't show this you don't have a case. If the plaintiff shows this violation, then the defendant has the burden of defense and must show that this ratio that was occurring due to the use of the test showing adverse impact was based on business necessity and had been properly validated (for example, you have to be strong enough to carry a person down a ladder when you are a fire fighter, and this test results in fewer women being hired as fire fighters than men, but a fire fighter who can't rescue a person from a burning building can't really do the job). The plaintiff can then content (and must demonstrate) that the selection test was a pretext for perpetuating discrimination. This can be done by showing that other valid tests exist that shows less or no adverse impact. This case created what employer's call "Grigg's burden," that is, you should be able to show that your test is valid, and if it does have adverse impact that it is still fair and you have no other alternatives that would work nearly as well.

The legal term is Adverse Impact. Being guilty of adverse impact does not require intent to discriminate. The other term, disparate treatment, requires proof of intent to discriminate.

THE CIVIL RIGHTS ACT OF 1964 APPLIES TO ALL PERSONNEL ACTIONS, INCLUDING BUT NOT LIMITED TO HIRING, FIRING, PROMOTION, ATTENDANCE AT TRAINING, AND PERFORMANCE APPRAISAL RATINGS.

Michael A. Barr, Ph.D.
Managing Director
Strategic Resources, Inc.