Source: cases/42usc2000e-2/f2d-706-1-costa-v-markey.case
Case source: https://www.neochart.com/catalog/cases/f2d/volume_706/0001_01/index.html
We remain unpersuaded that a hiring barrier can have a disparate impact on a protected group when competition for the job is only among members of that protected group.
On these facts, the height requirement cannot be viewed as having a disparate effect on women. In the absence of a discriminatory effect, Teal simply does not apply.
Plaintiff simply failed to make it over the initial hurdle of demonstrating that the challenged barrier had a discriminatory effect on women.
The Court’s focus must be on the first step in the employment process that produces an adverse impact on a group protected by Title VII, not the end result of the employment process as a whole.
In light of Teal, we hold that when, as here, an employer uniformly applies a rule to male and female applicants and applies it in one round of hiring decisions to a pool of only female applicants; the rule must be job-related if in its regular application it has a disparate effect on women.
We hold that plaintiff has established a prima facie case of disparate impact discrimination by making an undisputed showing that New Bedford’s use of its height requirement excluded far more women than men from competing for positions as police officers.
Since the city did not seek to justify its requirement by proving job-relatedness, plaintiff has proven a complete violation of Title VII.
The employer cannot point to the results of its process, but must justify use of the discriminatory element in that process.
But this is no defense to a prima facie case of disparate impact discrimination. It seeks to justify the disparate effect of the rule in general by pointing to the end results of one particular application of the rule.
casedsl 1
case /f2d/706/0001-01
name Costa v. Markey
cite 706 F.2d 1 (1982)
court United States Court of Appeals for the First Circuit
date 1982-12-03
url catalog/cases/f2d/volume_706/0001_01/index.html
source ir/caselaw/f2d_706.jsonl sha1=dfbcaf4b04f0a91e46827ca4783106220df6f096 chars=44940
law 42usc2000e-2 (a)(2)
role applied
posture civil; bench judgment for applicant (back pay) on disparate-impact theory; employer appeal; panel on rehearing after Connecticut v. Teal affirms liability (Costa II, 1982), then en banc court reinstates original reversal (1983) -- both opinions are in this one record
result claimant-lost
element impact : not-satisfied [law]
opinion en-banc (1983, operative)
count second rejection, from the women-only list
variant statistical-disparity/neutral-barrier-applied-to-single-sex-applicant-pool
fact @35583..35921 [cuts-against] | Because the city needed female officers to perform certain duties, related, for example, to female prisoners, and because there were no women high enough on the integrated list to be hired, the city sought and received approval from the Massachusetts Commission Against Discrimination to hire from a list of exclusively female applicants.
fact @35922..36090 [cuts-against] | The most recent integrated list was therefore separated and the city hired the top two women on the women-only list who also met the 5 feet 6 inches height requirement.
fact @37733..37879 [cuts-against] | Without the height requirement, the city would still have hired only two women. The only difference is that plaintiff would have been one of them.
rule @39478..39646 | We remain unpersuaded that a hiring barrier can have a disparate impact on a protected group when competition for the job is only among members of that protected group.
held @37940..38105 | On these facts, the height requirement cannot be viewed as having a disparate effect on women. In the absence of a discriminatory effect, Teal simply does not apply.
held @36814..36955 | Plaintiff simply failed to make it over the initial hurdle of demonstrating that the challenged barrier had a discriminatory effect on women.
gloss Height rule that would exclude ~80% of women vs ~20% of men has no sex-based impact where the hiring round was restricted to women: she lost to taller women, not to men. Teal's bar on the bottom-line defense presupposes an impact at some step.
gloss [law], not [no-evidence]: the statistics and the hiring sequence were undisputed; the reversal turns only on the legal unit of analysis.
element impact : satisfied [law]
scope superseded
opinion panel on rehearing (Costa II, 1982; superseded en banc)
count second rejection, from the women-only list
variant general-population-statistics/minimum-height-requirement
fact @3943..4140 [supports] | Plaintiff produced undisputed evidence that eighty percent of the male population is at least five feet six inches tall, while less than twenty percent of the female population reaches this height.
fact @3179..3324 [supports] | Plaintiff’s name correctly appeared first on this list. Plaintiff, however, was again rejected because she failed to meet the height requirement.
fact @11601..11768 [cuts-against] | The city routinely applied the height requirement to both male and female applicants. In this case the city applied the requirement to women only and hired only women.
rule @9397..9590 | The Court’s focus must be on the first step in the employment process that produces an adverse impact on a group protected by Title VII, not the end result of the employment process as a whole.
rule @12052..12344 | In light of Teal, we hold that when, as here, an employer uniformly applies a rule to male and female applicants and applies it in one round of hiring decisions to a pool of only female applicants; the rule must be job-related if in its regular application it has a disparate effect on women.
held @13875..14130 | We hold that plaintiff has established a prima facie case of disparate impact discrimination by making an undisputed showing that New Bedford’s use of its height requirement excluded far more women than men from competing for positions as police officers.
gloss Panel measured impact by the rule's general operation (national height data, Dothard) rather than by the particular all-female round; treated "we hired only women" as a forbidden bottom-line defense. The women-only round (third fact) is the fact the employer relied on and the en banc court found dispositive.
element impact.business-necessity : not-satisfied [conceded]
scope superseded
opinion panel on rehearing (Costa II, 1982; superseded en banc)
variant business-necessity/height-requirement
held @14131..14269 | Since the city did not seek to justify its requirement by proving job-relatedness, plaintiff has proven a complete violation of Title VII.
gloss Employer never attempted a job-relatedness showing; the en banc court did not reach this step because no prima facie impact.
defense x-bottom-line : not-satisfied [law]
scope superseded
opinion panel on rehearing (Costa II, 1982; superseded en banc)
variant bottom-line/only-protected-class-members-hired
rule @9876..10000 | The employer cannot point to the results of its process, but must justify use of the discriminatory element in that process.
held @11769..11987 | But this is no defense to a prima facie case of disparate impact discrimination. It seeks to justify the disparate effect of the rule in general by pointing to the end results of one particular application of the rule.
gloss En banc majority reframed the same fact (women-only hiring) not as a defense but as negating the impact element itself.
element adverse-action : satisfied [conceded]
variant failure-to-hire/rejected-under-minimum-height-rule
fact @36091..36210 [supports] | Although plaintiff’s name appeared first on the list, she was rejected because she did not meet the height requirement.
element protected-class : satisfied [conceded]
variant sex/female-police-applicant
fact @35283..35512 [supports] | In February, 1974, the city abandoned these separate job categories, and thereafter both men and women competed for positions as police officers. Women applicants were also required to meet the 5 feet 6 inches height requirement.
element because-of : not-reached
gloss Pure disparate-impact theory; no discriminatory purpose alleged ("Absent any discriminatory purpose").
misfit ONE IR RECORD, TWO OPPOSITE DECISIONS: the record concatenates the 1982 panel opinion on rehearing (plaintiff wins) and the 1983 en banc opinion (plaintiff loses), each with a dissent by the other's author. Header date/cite are the panel's; `result` records the en banc outcome. `opinion` says which opinion a block comes from and the panel blocks carry `scope superseded` (added to v1 for this case), but the two dissents are unrecorded and the header can cite only one of the two decisions.
misfit The dispute is about the UNIT OF ANALYSIS for the impact element (the rule in general operation vs this hiring round; one "police officer" job vs a women-only slot), i.e. how an element is measured, not whether facts meet a fixed test. Variant labels capture it only loosely.
misfit The same fact (only women were hired) is a rejected DEFENSE in the panel opinion and the negation of an ELEMENT in the en banc opinion; the notation forces a choice of slot per opinion and cannot show that the two are the same argument.
misfit Remedy holdings in the panel opinion (presumptive back pay; good faith and reliance on a permissive state statute do not bar back pay; unconditional-offer cutoff remanded under Ford Motor Co.; state not jointly liable) have no home: they are neither elements nor defenses to liability.
misfit An earlier rejection from the integrated list was held a violation by the district court (declaratory relief only) and was not appealed: a true `scope lower-court` impact ruling on a separate count, but a decided block needs a quote and none was captured for it, so it stays unrecorded. Statutory basis is (a)(2) pre-1991 (no (k)); the element vocabulary ties impact to (k). Separate opinions (Campbell concurring; Coffin dissenting then writing en banc; Bownes dissenting en banc) are not represented.