Costa v. Markey

706 F.2d 1 (1982) United States Court of Appeals for the First Circuit 1982-12-03

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)

Facts

  1. 2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin satisfied conceded
    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.
  2. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied conceded
    Although plaintiff’s name appeared first on the list, she was rejected because she did not meet the height requirement.
  3. 10 Particular employment practice causing a disparate impact on a protected group not law
    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.
  4. 10 Particular employment practice causing a disparate impact on a protected group not law
    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.
  5. 10 Particular employment practice causing a disparate impact on a protected group not law
    Plaintiff simply failed to make it over the initial hurdle of demonstrating that the challenged barrier had a discriminatory effect on women.
  6. 10 Particular employment practice causing a disparate impact on a protected group not law
    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.
  7. 10 Particular employment practice causing a disparate impact on a protected group not law
    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.
  8. 10 Particular employment practice causing a disparate impact on a protected group not law
    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.