Reference no: EM131006754

Two African American unionized employees of an electric utility company were faced with job loss in a downsizing. In order to exercise their seniority rights to "bump" into "storekeeper" positions held by junior employees, they had to pass an aptitude test (the "Clerical Aptitude Battery"-CAB). Both employees failed to pass the test and were laid off. The cutoff score for passing the test was set at 180. At various times in the past, the utility had used other cutoff scores for the test; the lowest of these was 150 and the highest 180. The utility conceded that the test created adverse impact against African Americans. The utility's expert witness presented evidence that an applicant with a score of 180 on the CAB had an almost 50 percent chance of developing into an above-average worker and only a 31 percent chance of winding up in the bottom third of all workers. In contrast, an ap- plicant scoring 150 on the CAB was equally likely (39 percent) to develop into an above-average employee or end up in the bottom third of all employees. As an alternative to the CAB, it was suggested at trial that the utility could require applicants to perform sample storekeeper tasks during their interviews. Do the laid-off employ- ees have a viable adverse impact claim? Why or why not? (International Brotherhood of Electrical Workers, AFL-CIO v. Mississippi Power & Light, 442 F.3d 313 (5th Cir. 2006))