Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982

United States Court of Appeals for the First Circuit · 1982-12-03

42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed

Original case on neochart.com

Case and law context

42 U.S.C. § 2000e-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; claim: (a)(2)

Uncertainty

opinion: ONE IR record, TWO decisions: @0..30805 is the panel decision on rehearing (Costa II, Dec. 1982: plaintiff wins) with its concurrence and dissent; @30806..44940 is the en banc decision (1983: plaintiff loses) with its dissent. Each opinion's footnotes directly follow its body, so every opinion is one span. The header cite/date are the panel's (the IR's); the controlling decision is the 1983 en banc one.

opinion: panel-conc, panel-dis and enbanc-dis have spans but no blocks: v1 captured no quote from them and quotes are frozen in this migration.

Element impact: other: this block reverses the district court's judgment on count `second` and displaces the panel's `impact` block below; neither relation is expressible (no block-to-block link; the district-court finding has no quote, so no `decider trial-judge` + `review reversed` block).

Element impact: polarity: third fact (women-only round) was [cuts-against] in v1. For the PANEL, whose block this is, it is a fact held irrelevant to impact (a bottom-line argument) -> [neutral]; it cuts against only on the en banc theory. In the v1-compatible view it therefore drops out of this block's evidence.

Element impact.business-necessity: basis: the employer never attempted the showing; [conceded], [waived] and [no-evidence] all fit loosely.

Element x-bottom-line: cites: the law file declares no relation between `impact` and `x-bottom-line` ("no impact, no bottom-line inquiry"), which is what both opinions argue about; nothing to cite.

Misfit

ONE IR RECORD, TWO OPPOSITE DECISIONS: opinion spans + `controlling` + `by panel` now separate them, but the header can cite only one decision (the panel's 1982 cite/date, while `result` records the 1983 en banc outcome), and "the en banc opinion supersedes the panel opinion" is only implied by `controlling` + kind `panel` (no opinion-to-opinion relation; Costa I, reinstated en banc, is outside the record).

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. The two declared `theory` ids now name the two answers, but the law file has no `mode impact` (or relation) for them to cite.

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.

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.

Count `first` (rejection from the integrated list) was held a violation by the district court and not appealed: exactly a `decider trial-judge` + `review none` impact block, but a decided block needs a quote and none was captured in v1 (the en banc footnote @42039.. reports it), so the count is declared and unused. Statutory basis is (a)(2) pre-1991 (no (k)); the element vocabulary ties impact to (k).

B · Case × element grid

Top-level elements follow claim order in panels of up to six elements. Case rows repeat across panels. Every recorded block retains its holding and basis; multiple blocks are not merged into a case-level verdict. ✓ satisfied · ✗ not satisfied · ○ not reached · · not addressed. Muted blocks are not counted. Sub-element evidence remains on case and element pages.

Elements 1–6 of 33

42 U.S.C. § 2000e-2
CaseCovered entity: employer, employment agency, or labor organizationProtected trait: race, color, religion, sex (including pregnancy/abortion), or national originAdverse employment action affecting compensation, terms, conditions, privileges, or statusDiscriminatory causation ("because of" protected trait)adverse-action-a2 statutory route or exceptionemployment-agency-route statutory route or exception
Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)· not addressed
○ not reached · basis not recordedNot counted: applied/merits
· not addressed· not addressed

Elements 7–12 of 33

42 U.S.C. § 2000e-2
Caselabor-organization-route statutory route or exceptiontraining-program statutory route or exceptionImpermissible motivating factor in mixed-motive cases (§ 2000e-2(m))Bona fide occupational qualification (§ 2000e-2(e)(1))Severe or pervasive hostile or abusive working environmentParticular employment practice causing a disparate impact on a protected group
Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)· not addressed· not addressed· not addressed· not addressed· not addressed
✓ satisfied · lawNot counted: applied/superseded

Elements 13–18 of 33

42 U.S.C. § 2000e-2
CaseBona fide seniority/merit system or professionally developed ability test (§ 2000e-2(h))Failure to reasonably accommodate religious observance or practice (§§ 2000e-2(a)(1), 2000e(j))Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a))communist-organization statutory route or exceptionEmployer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2)indian-preference statutory route or exception
Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)· not addressed· not addressed· not addressed· not addressed· not addressed· not addressed

Elements 19–24 of 33

42 U.S.C. § 2000e-2
CaseSubsection (n) limits challenges to covered litigated or consent judgments or ordersjudgment-order-scope statutory route or exceptionk2-intentional-limit statutory route or exceptionk3-controlled-substance statutory route or exceptionlabor-organization-causation statutory route or exceptionnational-security statutory route or exception
Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)· not addressed· not addressed· not addressed· not addressed· not addressed· not addressed

Elements 25–30 of 33

42 U.S.C. § 2000e-2
Caseno-preference-imbalance statutory route or exceptionPretext for discrimination (McDonnell Douglas step 3)Qualified for the position / meeting legitimate employer expectationsreligious-institution statutory route or exceptiontest-score-discrimination statutory route or exceptionRejected "bottom-line" racial or gender balance defense to a discriminatory pass/fail barrier (Connecticut v. Teal)
Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)· not addressed· not addressed· not addressed· not addressed· not addressed
✗ not · lawNot counted: applied/superseded

Elements 31–33 of 33

42 U.S.C. § 2000e-2
CaseStrong-basis-in-evidence defense for race-conscious action taken to avoid disparate-impact liability (Ricci v. DeStefano)Rejected defense that an adverse CBA arbitration precludes a Title VII action (Alexander v. Gardner-Denver)Mixed-motive same-decision partial affirmative defense (42 U.S.C. § 2000e-5(g)(2)(B))
Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)· not addressed· not addressed· not addressed

Instances and excluded annotation blocks

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopePatternExact source quotations
Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 — satisfied · conceded (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)Adverse employment action affecting compensation, terms, conditions, privileges, or statussatisfied
Counted merits instance
applied / merits

basis: conceded; claim: (a)(2); party: plaintiff applicant for police officer, 5 feet tall, first on the women-only list; count: second rejection, from the women-only list; the only count on appeal; subject: party=plaintiff applicant for police officer, 5 feet tall, first on the women-only list; count=second rejection, from the women-only list; the only count on appeal

failure-to-hire/rejected-under-minimum-height-rule
Although plaintiff’s name appeared first on the list, she was rejected because she did not meet the height requirement.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [36091:36210] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 — not reached (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)Discriminatory causation ("because of" protected trait)not_reached
Excluded from merits counts
applied / merits

claim: (a)(2)

Pure disparate-impact theory; no discriminatory purpose alleged ("Absent any discriminatory purpose").
Unspecified routeNo source quotation recorded for this block.
Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 — not · law (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)Particular employment practice causing a disparate impact on a protected groupnot
Counted merits instance
applied / merits

basis: law; claim: (a)(2); party: plaintiff applicant for police officer, 5 feet tall, first on the women-only list; count: second rejection, from the women-only list; the only count on appeal; theory: impact is measured in the hiring round at issue (women competed only with women); subject: party=plaintiff applicant for police officer, 5 feet tall, first on the women-only list; count=second rejection, from the women-only list; the only count on appeal; theory=impact is measured in the hiring round at issue (women competed only with women)

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. [law], not [no-evidence]: the statistics and the hiring sequence were undisputed; the reversal turns only on the legal unit of analysis.
neutral-barrier-applied-to-single-sex-applicant-pool
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.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [35583:35921] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [35922:36090] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [37733:37879] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [37940:38105] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Plaintiff simply failed to make it over the initial hurdle of demonstrating that the challenged barrier had a discriminatory effect on women.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [36814:36955] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 — satisfied · law (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)Particular employment practice causing a disparate impact on a protected groupsatisfied
Excluded from merits counts
applied / superseded

basis: law; claim: (a)(2); party: plaintiff applicant for police officer, 5 feet tall, first on the women-only list; count: second rejection, from the women-only list; the only count on appeal; theory: impact is measured by the rule in its general operation (national height statistics; one "police officer" job); opinion: panel (Bownes); subject: party=plaintiff applicant for police officer, 5 feet tall, first on the women-only list; count=second rejection, from the women-only list; the only count on appeal; theory=impact is measured by the rule in its general operation (national height statistics; one "police officer" job); opinion=panel (Bownes)

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.
general-population-statistics/minimum-height-requirement
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.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [3943:4140] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Plaintiff’s name correctly appeared first on this list. Plaintiff, however, was again rejected because she failed to meet the height requirement.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [3179:3324] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [9397:9590] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [12052:12344] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [13875:14130] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 — not · conceded (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)Job-related for the position in question and consistent with business necessity (§ 2000e-2(k)(1)(A)(i))not
Excluded from merits counts
applied / superseded

basis: conceded; claim: (a)(2); party: defendant City of New Bedford officials; count: second rejection, from the women-only list; the only count on appeal; opinion: panel (Bownes); subject: party=defendant City of New Bedford officials; count=second rejection, from the women-only list; the only count on appeal; opinion=panel (Bownes)

Employer never attempted a job-relatedness showing; the en banc court did not reach this step because no prima facie impact.
business-necessity/height-requirement
Since the city did not seek to justify its requirement by proving job-relatedness, plaintiff has proven a complete violation of Title VII.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [14131:14269] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 — satisfied · conceded (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)Protected trait: race, color, religion, sex (including pregnancy/abortion), or national originsatisfied
Counted merits instance
applied / merits

basis: conceded; claim: (a)(2); party: plaintiff applicant for police officer, 5 feet tall, first on the women-only list; subject: party=plaintiff applicant for police officer, 5 feet tall, first on the women-only list

female-police-applicant
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.
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 — not · law (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)Rejected "bottom-line" racial or gender balance defense to a discriminatory pass/fail barrier (Connecticut v. Teal)not
Excluded from merits counts
applied / superseded

basis: law; claim: (a)(2); party: defendant City of New Bedford officials; count: second rejection, from the women-only list; the only count on appeal; opinion: panel (Bownes); subject: party=defendant City of New Bedford officials; count=second rejection, from the women-only list; the only count on appeal; opinion=panel (Bownes)

En banc majority reframed the same fact (women-only hiring) not as a defense but as negating the impact element itself.
bottom-line/only-protected-class-members-hired
The employer cannot point to the results of its process, but must justify use of the discriminatory element in that process.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Court interpretations recorded from this case

hypothetical

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.

Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)

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.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [9397:9590] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Prima facie disparate impact under Griggs and § 2000e-2(k)(1)(A)(i): plaintiff identifies a specific employment practice that causes a significant disproportionate adverse impact on a protected group. RICCI_SCOPE: Ricci quotes in this block describe a hypothetical disparate-impact claim considered within the defense to intentional discrimination; they do not record adjudication of an actual subsection (k) claim against this employer.

hypothetical

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.

Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)

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.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [12052:12344] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Prima facie disparate impact under Griggs and § 2000e-2(k)(1)(A)(i): plaintiff identifies a specific employment practice that causes a significant disproportionate adverse impact on a protected group. RICCI_SCOPE: Ricci quotes in this block describe a hypothetical disparate-impact claim considered within the defense to intentional discrimination; they do not record adjudication of an actual subsection (k) claim against this employer.

hypothetical

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.

Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)

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.
Source: docroot/ir/caselaw/f2d_706.jsonl#/f2d/706/0001-01; Unicode character offsets [39478:39646] (end exclusive); SHA-256 a04ddf6b77ebbe1be45da604edab3afaa55f3443924aa30b820fa57e210b4ed1.

Prima facie disparate impact under Griggs and § 2000e-2(k)(1)(A)(i): plaintiff identifies a specific employment practice that causes a significant disproportionate adverse impact on a protected group. RICCI_SCOPE: Ricci quotes in this block describe a hypothetical disparate-impact claim considered within the defense to intentional discrimination; they do not record adjudication of an actual subsection (k) claim against this employer.

interpretation

The employer cannot point to the results of its process, but must justify use of the discriminatory element in that process.

Costa v. Markey — 706 F.2d 1 (1982) · United States Court of Appeals for the First Circuit · 1982 (42usc2000e-2: author: Fable · historical QA: PASS (QA1, neov2/qa/cases-QA1.md) · changed after review; current content not independently reviewed)

The employer cannot point to the results of its process, but must justify use of the discriminatory element in that process.
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(formerly `variant bottom-line-balance`) Rejected defense that overall ("bottom-line") hiring numbers excuse a discriminatory pass/fail barrier within the selection process Rejected defense under Connecticut v. Teal (457 U.S. 440 (1982)) and Costa v. Markey: a favorable "bottom line" does not immunize an employer from justifying a specific pass/fail barrier that disproportionately excludes members of a protected group.