632.1 Complainant’s prima facie case

The Complainant contended that a requirement that candidates for the job of school principal have five years of experience in the public schools had a disparate impact against Catholics and others with “religious school experience,” since most private schools are religious. This contention was rejected. The sole evidence of disparate impact was a list of private schools in Wisconsin in 2012, with a designation as to which of them was religious. The record contained no statistical evidence to suggest that the requirement of five years of public school experience had the effect of eliminating applicants of any particular creed, including Catholicism, from being selected by the Respondent. Stanke v. Holmen Sch. Dist. (LIRC, 02/13/14), aff’d (St. Croix Co. Cir. Ct., 09/24/14).

The Complainant’s disparate impact claim fails where she did not identify any employment practice or selection device utilized by the Respondent that is claimed to have a disparate impact on females or individuals in the protected age group, and where she also failed to present any competent statistical analysis showing a disproportionality of a distribution of a group of employees or any reason to believe that such disproportionality, if it existed, would be the result of a neutral selection device or procedure. Kelly v. Couleecap, Inc. (LIRC, 01/15/14).

The employer’s reliance on the Complainant’s lack of recent supervisory experience as a reason for a challenged decision, will not support a “disparate impact” claim. Disparate impact must be proved by actual statistical evidence, significant (in the statistical sense) to the confidence level required by law, comparing the effect of an employer's selection device or standard on employees in the different groups being compared. This is an evidentiary requirement. However, the Complainant presented no statistical evidence, but relied only on a sort of “thought experiment,” in his brief, positing a hypothetical population of individuals who all acquired two years of supervisory experience between the ages of 18 and 20, and then describing what the effects would be of applying to them a number of specific cut-off tests. This is insufficient to establish a prima facie case of disparate impact. Bartel v. Greater Madison Convention & Visitors Bureau (LIRC, 12/19/13).

To make out a prima facie case of disparate impact, a Complainant must show that an employment practice or selection device (for example, a passing score on a certain test, or a high school diploma requirement) selects employees or applicants in a pattern which is significantly different from the pattern of a particular minority in the applicant pool. Moncrief v. Gardner Baking (LIRC, 07/01/92).

In order to prove disparate impact, the Complainant must identify the specific employment practice that is challenged, especially where the employer has combined subjective criteria with more rigid rules or standardized rules or tests. Watson v. WPS (LIRC, 09/06/89).

Where the complaints alleged a disparate impact upon blacks, information on the effect of the challenged practice on Hispanic and American Indian persons should not have been considered in determining whether a disparate impact was demonstrated. Davis v. City of Milwaukee (LIRC, 09/05/86).

A female teacher with over two years experience failed to prove that combining an academic teaching position with coaching duties had a disparate impact on female teachers, or that the employer's interviewing for budgetary reasons of only persons with no more than two years experience was sex discrimination. Marcoux v. Mayville Pub. Sch. (DILHR, 10/29/76); Emling v. DILHR (Mt. Horeb High) (Dane Co. Cir. Ct., 03/27/78).