other groups, including older U.S. citizens and individuals with disabilities. The AGE DISCRIMINA- TION in Employment Act of 1967 (ADEA) (29 U.S.C.A. § 621 et seq.) prohibits employers with 20 or more employees from discriminating because of age against employees over age 40. Industries affecting commerce as well as state and local governments are covered by the ADEA. Disabled individuals received federal protection against discrimination with the passage of the Rehabilitation Act of 1973 (29 U.S.C.A. § 701 et seq.), which prohibits any program activity receiving federal funds from denying access to a handicapped person. In 1990, Congress enacted the Americans with Disabilities Act (ADA) (codified in scattered sections of titles 42, 29, 47 of the U.S.C.). The ADA was widely hailed as the most significant piece of civil rights legislation since the Civil Rights Act of 1964.It provides even broader protection, prohibiting discrimination against disabled individuals in employment, public accommodations, trans portation, and telecommunications. Victims of racial discrimination may also bring claims under other federal statutes. For instance, in CBOCS West, Inc. v. Humphries, 552 U.S. ___, 128 S. Ct. 1951, 170 L. Ed. 2d 164 (2008), the U.S. Supreme Court ruled that plaintiffs in race-based retaliation cases may bring causes of action under 42 U.S.C. § 1981 as well as Title VII. The significance of this decision is that plaintiffs are no longer limited by the short STATUTE OF LIMITATIONS in Title VII or by the damage caps imposed by Title VII. Although discrimination on the basis of gender is included in Title VII of the Civil Rights Act of 1964, a number of other federal laws also prohibit SEX DISCRIMINATION. The EQUAL PAY ACT OF 1963 (29 U.S.C.A. § 206 [d])amended the FAIR LABOR STANDARDS ACT of 1938 (29 U.S.C.A. §§ 201-219). It prohibits discrimination that occurs through different forms of compensation for jobs with equal skill, effort, and responsibil- ity. The Pregnancy Discrimination Act of 1978 (42 U.S.C.A. § 2000e[k]) prohibits discrimina- tion against employees on the basis of pregnancy and childbirth in employment and benefits. Title IX of the Education Amendments of1972 (20 U.S. C.A. §§ 1681–1686) prohibits sex discrimination in educational institutions that receive federal funds, including exclusions from noncontact team sports on the basis of sex. In addition, the Equal Credit Opportunity Act (15 U.S.C.A. § 1691 et seq.) prohibits discrimination in the extension of credit on the basis of sex or marital status. State and local laws can also protect indivi- duals from discrimination. For example, gays and lesbians, although not generally included under federal civil rights laws, are protected in many cities by local ordinances outlawing dis- crimination against individuals on the basis of sexual orientation. Several states have extended benefits to same-sex partners in a manner similar to benefits extended to spouses in heterosexual marriages. Local antidiscrimination laws have been used to deny funding to groups that bar members because of their sexual orientation. Such was the case after the Supreme Court issued it ruling in Boys Scouts of America v. Dale, 530 U.S. 640, 120 S. Ct. 2446, 147 L.E d.2d 554 (2000). The Court held that the Boy Scouts of America (BSA), as a private organization, had the constitutional right to bar homosexual troop leaders and members from its ranks. The Boy Scouts hailed this as an important victory, but many corporations and local governments were angered by the decision. Major corporate sponsors withdrew their support, and school districts and city councils reviewed their relationships with the BSA. The one million Boy Scouts are organized into 19,00 0 local troops. Many of the troops use public schools or community centers for their meetings. In light of the court decision, a number of cities around the United States either barred the Boy Scouts from using public space or required them to pay, citing antidiscrimination ordinances and policies. In at least 39 cities, the local United Way charitable organizations withdrew funding to the BSA, again citing antidiscrimination policies. The BSA estimated in 2002 that these decisions cut local troop income by 10 to 15 percent, totaling millions of dollars. FURTHER READINGS Cokorinos, Lee. 2003. The Assault on Diversity: An Organized Challenge to Racial and Gender Justice. New York: Rowman & Littlefield. Price, Joyce Howard. 2002. “Scouts Lose United Way Funds over Gay Ban.” Washington Times (March 15). Richards, David A. J. 1999. Identity and the Case for Gay Rights: Race, Gender, Religion as Analogies. Chicago: Univ. of Chicago Press. Sullivan, Charles A., and Lauren M. Walter. 2009. Employ- ment Discrimination: Law and Practice. Frederick, Md.: Aspen. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 478 DISCRIMINATION CROSS REFERENCES Affirmative Action; Age Discrimination; Club; Colleges and Universities; Disability Discrimination; Equal Employ- ment Opportunity Commission; Gay and Lesbian Rights; Women’s Rights. DISFRANCHISEMENT The removal of the rights and privileges inherent in an association with a group; the taking away of the rights of a free citizen, especially the right to vote. Sometimes called disenfranchisement. The relinquishment of a person’srightto membership in a corporation is distinguishable from a motion, which is the act of removing an officer from an office without depriving him or her of membership in the corporate body. In U.S. law, disfranchisement most commonly refers to the removal of the right to vote, which is also called the “franchise” or “s uffrage.” Histori- cally, states passed a variety of laws disfranchising poor people, insane p eople, and c riminals. M ost conspicuously, the JIM CROW LAWS passed by Southern states e ffectively d isfranch ised African Americans from the late nineteenth cen tur y un til well into the twentieth century. During Reconstruction, following the Civil War, African Americans in the South briefly enjoyed VOTING privileges that were nearly equal to those of whites. However, beginning around 1890, legally sanctioned disfranchisement occurred on a huge scale. For example, during the years directly following the Civil War, African Americans made up as much as 44 percent of the registered electorate in Louisiana, but by 1920 they consti- tuted only 1 percent of the electorate. In Mississippi, almost 70 percent of eligible African Americans were registered to vote in 1867; after 1890 fewer than 6 percent were eligible to vote. There were similar decreases in the percentages of elected black officials in all Southern states. Although the FIFTEENTH AMENDMENT to the Constitution, passed in 1870, asserts that “[t]the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” Southern states established laws and practices that circumvented these provisions. They employed disfranchise- ment devices such as poll taxes, property tests, literacy tests, and all-white primaries to preve nt African Americans from voting. On the surface, such laws discriminated on the basis of education and property ownership rather than race, but their practical and intended effect was to block African Americans from the polls. Legal devices called “grandfather clauses” allowed poor and illiterate whites to avoid discriminatory tests on the grounds that they or their ancestors had previously had the franchise. When discrimina- tory laws were combined with the violence and intimidation directed at potential black voters by white hate groups such as the KU KLUX KLAN,the silencing of the African American political voice was almost complete. Despite Supreme Court rulings striking down discriminatory measures as early a s 1915 (see, e.g., Guinn v. United States, 238 U.S. 347, 35 S. Ct . 926, 59 L. Ed. 1340 [1 915]), Southern states cont inued to bar African Americans from voting for most of the twentieth century. Only with t he passage of the VOTING RIGHTS ACT OF 1965 (42 U.S.C.A. § 19 73 et seq.) did twentieth-century African American s in the South finally reach the polls in significant numbers. For example, i n 1965, onl y 19 percent of non-whites in Alabama and seven percent of non- whites in Mississippi were registered to vote. Four years later, after pass age of t he Voting Right s Act, the percentages of non-white registrants in Alabama and Mississ ippi had jumped to 5 7 p ercent and 59 percent, respectively. Although blatant disfranchisement is some- what rare in current elections, claims ofracism still occur. During the 2000 presidential election, SOURCE: American Civil Liberties Union, “Voting Rights for People with Criminal Records: 2008 State Legislative and Policy Changes,” available online at http:// www.aclu.org/votingrights/exoffenders/statelegispolicy2008.html (accessed August 14, 2009). States allowing persons in prison, on probation, or on parole the right to vote: Maine, Vermont States allowing only persons on probation or parole the right to vote: District of Columbia, Hawaii, Illinois, Indiana, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah States allowing only persons on probation the right to vote: California, Colorado, Connecticut, New York, South Dakota States allowing all convicted felons the right to vote upon completion of prison sentence: Alaska, Arkansas, Georgia, Idaho, Iowa, Kansas, Louisiana, Maryland, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, Washington, West Virginia, Wisconsin States allowing only some convicted felons the right to vote: Alabama, Arizona, Delaware, Florida a , Mississippi, Nevada, Tennessee, Wyoming States regarding convicted felons as permanently disfranchised: Kentucky, Virginia a Florida is still viewed by some as a permanent disfranchisement state. Criminal Voting Rights, by State, 2008 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DISFRANCHISEMENT 479 which was one of the most heavily contested and highly controversial in history, thousands of minority voters claimed that their votes were not counted, due to minor errors on their ballots. Federal election law leaves the particular voting procedures in presidential elections to the states, so the states use a variety of techniques to count the ballots. Many states used a hole-punch method, where machines count ballots based upon holes punched in ballot cards. If the machine could not read the card, which may have occurred if the hole punch was incomplete or if more than one hole was punched, the vote was not counted. This was particularly problematic in the state of Florida, which was the subject of a national controversy surrounding the proper vote count. During the initial election on November 7, 2000, and during subsequent recounts during the weeks following the election, many votes were not counted, due to errors, and many minority voters claimed that they had cast many of the discounted votes. Minority groups have pressured Congress to enact stricter standards in order to prevent this occurrence in future elections. Congress passed the 2002 Help America Vote Act (HAVA), 42 U.S. 15301 et seq., P.L. 107-252, 116 Stat. 1666, following the contro- versial 2000 national elections. The new law addressed all aspects of the election and voting process and was implemented with sequential deadlines that started in December 2002 and ended in January 2007. HAVA Title III set minimum national standards for the kind of identification that voters must present at the polls before being allowed to vote. HAVA mandated that states require iden tification at the polls for all first-time voters who registered by mail, if the registration did not require identification. In addition, voters who had not voted in the previous election would now be required to provide identification. Election law experts had long expressed hope that the U.S. Supreme Court would address the issue of voter ID requirements, especially photogra phic identification, found in many sta te laws. Appella te courts upheld such laws in Arizona, Georgia, and Indiana, but the Missouri Supreme Court had struck its voter ident ification statute in 2006. Weinschenk v. State of Missouri, et al. It was suggested that the inconsistency in state statutes c ould wreak havoc for the 2008 presidential elections. But in Crawford v. Marion County Board of Elections 553 U.S. ___ (2008), the U.S. Supreme Court affirmed the U.S. Court of Appeals for the Seventh Circuit’s decision that upheld Indiana’s state law requiring, with certain exceptions, in- person votersto present government-issued photo identification. The CAVEAT that the photo ID be government-issued made Indiana’slawoneofthe strictest in the nation. Still, the Supreme Court, by a6–3 margin, concluded that the photo ID requirement was closely related to Indiana’s legitimate interest in preventing voter FRAUD. Notwithstanding, new allegations of voter disenfranchisement surfaced during the 2008 elections. In October 2008, just weeks before the November presidential and national elections, The New York Times published a lengthy and provocative article entitled, “States’s Actions to Block Voters Appear Illegal,” in which it claimed that “Tens of thousands of eligible voters in at least six swi ng states have been removed from the rolls or have been blocked from registering in ways that appear to violate federal law, according to a review of state records and SOCIAL SECURITY data by The New York Times.” However, the article went on to discount any coordinated efforts by political parties or rule-breaking by election officials. Instead, the Times attributed the cause to genuine mistakes in the handling of registrations and voter files as states (some for the first time) tried to comply with HAVA. At the same time, allegations surfaced against the NONPROFIT Association of Community Orga- nizations for Reform Now (more commonly known as ACORN) for its attempts to register new voters from the ranks of underrepresented low- and middle-income groups. The organiza- tion itself was accused of voter fraud (e.g., registering illegal ALIENS and duplicating regis- trations in different venues) following news that Nevada authorities had raided its Las Vegas headquarters in October 2008. In 2009 ACORN employees were secretly videotaped advising undercover investigators on ways to falsify IRS tax returns (claiming illegal immigrant children as dependents) and ways to evade police in the operation of a brothel. Shortly thereafter, both House and Senate in Congress quickly voted to cut off all funding to the organization (e.g., prior grants to help register voters, assistance with IRS TAX RETURN preparation, and qualify- ing persons for federally assisted low-income housing and mortgages) and distance the government from ACORN as news broke that its employees could face criminal charges. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 480 DISFRANCHISEMENT Other forms of disfranchisement, including the disfranchisement of criminals, remain con- troversial. Since the early 1990s, all but three states have prohibited imprisoned offenders from voting. Thirty-five states disfranchise offenders on PROBATION or PAROLE, and 14 disfranchise ex- offenders for life. Because a disproportionate share of convicted criminals are non-white, some have argued that such laws constitute a racially discriminatory voting barrier that is as pernicious as poll taxes and literacy tests. Many state criminal disfranchisement laws date back to the Recon- struction era, and such laws were often targeted at offenses for which African Americans were disproportionately convicted. For this reason, some groups have called for the reform or removal of criminal disfranchisement laws. FURTHER READINGS Belknap, Michael, ed. 1991. Civil Rights, the White House, and the Justice Department. New York: Garland. CBS News. 2008. “Non-Profit Raided in Voter Fraud Probe.” October 7, 2008. Available online at http:// www.cbsnews.com.stories/2008/10/07/cbsnews_investi- gates/main4508170.shtml; website home page: http:// www.cbsnews.com (accessed August 5, 2009) Reitman, Alan, and Robert B. Davidson. 1972. The Election Process: Voting Laws and Procedures. Dobbs Ferry, N.Y.: Oceana. Schmidt, Benno C., Jr. 1982. “Black Disfranchisement from the KKK to the Grandfather Clause.” Columbia Law Review 82 (June). Shapiro, Andrew L. 1993. “Challenging Criminal Disenfran- chisement under the Voting Rights Act.” Yale Law Journal 103 (November). Soltis, Andy. “ACORN is Squashed in Hooker Loan Sting.” The New York Post, September 12, 2009. Urbina, Ian. 2008. “States’s Actions to Block Voters Appear Illegal,” The New York Times, 9 October 2008. DISHONOR To refuse to accept or pay a draft or to pay a promissory note when duly presented. An instru- ment is dishonored when a necessary or optional presentment is made and due acceptance or payment is refused, or cannot be obtained within the prescribed time, or in case of bank collections, the instrument is seasonably returned by the midnight deadline; or presentment is excused and the instrument is not duly accepted or paid. Includes the insurer of a letter of credit refusing to pay or accept a draft or demand for payment. As respects the flag, to de face or defile, imputing a lively sense of shaming or an equivalent acquiescent callousness. DISINHERIT To cut off from an inheritance. To deprive someone, who would otherwise be an heir to property or another right, of his or her right to inherit. A parent who wishes to disinherit a child may specifically state so in a will. DISINTERESTED Free from bias, prejudice, or partiality. A disinterested witness is one who has no interest in the case at bar, or matter in issue, and is legally competent to give testimony. DISMISSAL A discharge of an individual or corporation from employment. The disposition of a civil or criminal proceeding or a claim or charge made therein by a court order without a trial or prior to its completion which, in effect, is a denial of the relief sought by the commencement of the action. The legal effect of a dismissal varies depend- ing upon its type. A dismissal, granted by a court that has exercised its discretion in evaluating the particular case before it, operates similarly in civil and criminal actions. Civil Proceedings Rules embodied in state codes of CIVIL PROCE- DURE and the Federal Rules of Civil Procedure govern the granting of dismissals in civil actions brought in state and federal courts. The primary function of a dismissal is to promote the speedy and efficient administration of justice by remov- ing from the consideration of a court any matters that have been unnecessarily delayed to the disadvantage of the defendant. Dismissal with Prejudice A dismissal with prejudice is a judgment rendered in a lawsuit on its merits that prevents the PLAINTIFF from bringing the same lawsuit against the same defendant in the future. It is a harsh remedy that has the effect of canceling the action so that it can never again be commenced. A dismissal with prejudice is RES JUDICATA as to every issue litigated in the action. The possibility of such a dismissal acts as a deterrent to the use of DILATORY tactics by a plaintiff who wants to prejudice a defendant’s case by unreasonably hindering the disposition of the action from the time of the filing of the action to the actual trial of the issues. It is also GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISMISSAL 481 designed to minimize, if not eliminate, the congestion of court calendars caused by unnec- essary delays in pen ding cases. Because it is regarded as a drastic remedy, courts grant dismissals with prejudice only in the most egregious cases in response to a motion brought by a defendant or by a court SUA SPONTE or on its own will. Motion by a Defendant A defendant may make a motion to a court to dismiss the CAUSE OF ACTION if the plaintiff has failed to appear to prosecute his or her case. A plaintiff is obligated to prosecute the action with due diligence within a REASONABLE TIME of commencing the action. If the passage of time hurts the defendant in the preparation of his or her case or if it substantially affects the defendant’s rights, then the defen- dant may seek a dismissal with prejudice. A dismissal will not be granted if the failure to prosecute resulted from unavoidable circum- stances, such as the death of the plaintiff, and there is a delay in the appointment of a PERSONAL REPRESENTATIVE to continue the action. When the parties attempt to negotiate a settlement of the controversy, consequent delays in reaching an agreement will not provide a basis for dismissal with prejudice. If, however, a plaintiff delays prosecution based on the mere possibility of a settlement without demonstrating concrete efforts to achie ve an agreement, a court may grant a dismissal upon the defendant’s motion. The defendant must be free of any respon- sibility for delay when he or she seeks a dismissal for failure to prosecute. A lawsuit will not be dismissed if the defendant caused or contribut- ed to the delay, such as if the individual leaves the state to avoid the trial. Sua Sponte Power of Court A court has inherent power to dismiss an action with prejudice if it is vexatious, brought in BAD FAITH, or when there has been a failure to prosecute it within a reasonable time. If a plaintiff who has commenced an action fails to comply with discovery devices, a court, which has issued the order of compliance, may sua sponte dismiss the case with prejudice. Dismissal without Prejudice A plaintiff is not subsequently barred from suing the same defendant on the same cause of action when a court grants a dismissal WITHOUT PREJUDICE of his or her case. Such a dismissal operates to terminate the case. It is not, however, an ultimate disposition of the controversy on the merits, butratheritisusuallybaseduponprocedural errors that do not substantially harm the defendant’s rights. It effectively treats the matter as if the lawsuit had never been commenced, but it does not relieve a plaintiff of the duty of complying with the STATUTE OF LIMITATIONS,the time limit within which his or her action must be commenced. A dismissal without prejudice is granted in response to a notice of dismissal, stipulations, or a court order. Notice of Dismissal A plaintiff may serve a notice of dismissal upon a defendant only if the defendant has not yet submitted an answer in response to the plaintiff’s complaint. A notice of dismissal preserves the right of the plaintiff to commence a lawsuit at a later date. While not commonly employed, such a notice is useful when exigent circumstances—such as the sudden unavailability of witnesses—warrant the termina- tion of the action. The clerk of the court in which the lawsuit was commenced must receive a copy of the notice of dismissal served upon the defendant to adjust the record of the action accordingly. Stipulation Once a defendant has served an answer to the plaintiff’s complaint, the plaintiff may obtain a dismissal without prejudice by entering a formal agreement, a stipulation, with the defendant. The parties agree to the terms of the dismissal, which must be filed with the court clerk and put into effect by the action of the clerk. A dismissal agreement is a court order that enforces the stipulation of the parties. A dismissal by stipulation is a dismissal without prejudice unless the parties otherwise agree and record their agreement in the text of the stipulation. Court Order A plaintiff may make a motion to dismiss his or her action w ithout prejudice if the plaintiff cannot serve a notice of dismissal or obtain a stipulation. A dismi ssal will not be granted to a plaint iff, however, if it would prejudice the rights of any other individual who has a legal interest in the subject matter of a lawsuit. If a joint tenant fails to agree with his or her co-tenant to dismiss an action against a landlord for breach of the warranty of habit- ability without prejudice, then there will not be a dismissal. Criminal Prosecutions A dismissal in a criminal prosecution is a decision of a court, which has exercised its discretion prior to trial or before a verdict is reached, that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 482 DISMISSAL terminates the proceedings against the defen- dant. The procedure by which dismissals in state and federal criminal actions are obtained are governed, respectively, by the state and federal rules of CRIMINAL PROCEDURE. In criminal prosecutions, delay often prejudices the defen- dant’s rights because of the greater likelihood that evidence would be lost or memories or events would not be recalled easily. The possibility of dismissal ensures the prompt government prosecution of individuals accused of criminal activity. The legal effect of a dismissal in a criminal prosecution is dependen t upon the type that is granted by the court. Dismissal with Prejudice A dismissal with prejudice bars the government from prosecuting the accused on the same charge at a later date. The defendant cannot subsequently be reindicted because of the constitutional guarantee against DOUBLE JEOPARDY. A dismissal with prejudice is made in response to a motion to the court by the defendant or by the court sua sponte. Motion by a Defendant A defendant may make a motion to the court to have the charges against him or her—whether embodied in an indictment, information, or complaint—dis- missed with prejudice because the delay has violated the individual’s constitutional right to a speedy trial or there is no sufficient evidence to support the charges. In deciding whether a delay is unreasonable, the court evaluates the extent of the delay, the reasons for it, the prejudice to the defendant, and the defendant’s contribution to the delay. Sua Sponte Power of Court A court with jurisdiction to decide criminal matters can sua sponte dismiss a criminal prosecution with pre- judice if the facts of the case clearly established that an accused has been deprived of his or her constitutional right to a speedy trial. Dismissal without Prejudice A dismissal without prejudice that permits the reindictment or retrial of a defendant on the same charge at a subsequent date may be granted by a court acting sua sponte or after the prosecuting attorney has made a motion to do so. Only nonconstitutional grounds that do not adversely affect the rights of the defendant, such as the crowding of court calendars, might be sufficient to warrant the dismissal of a CRIMINAL ACTION without prejudice. FURTHER READINGS Cohen, Alan G., ed, et al. 1992. The Living Law: A Guide to Modern Legal Research. Rochester, N.Y.: Lawyers Cooperative. Duhaime, Lloyd. “Constructive Dismissal.” Duhaime.org. Available online at http://www.duhaime.org/Legal- Dictionary/C/Constructivedismissal.aspx; website home page: http://www.duhaime.org (accessed September 2, 2009). CROSS REFERENCES Civil Action; Criminal Procedure; Discovery; Double Jeopardy. DISORDERLY CONDUCT A broad term describing conduct that disturbs the peace or endangers the morals, health, or safety of a community. Unlike the offense of BREACH OF THE PEACE, which originated under COMMON LAW, DISORDERLY CONDUCT is strictly a statutory crime. It is commonly considered a broader term than breach of the peace and, under some statutes, breach of the peace is an element of disorderly conduct. The elements of disorderly conduct vary from one jurisdiction to another. Most statutes specify the misconduct that constitutes the offense. Acts such as the use of vulgar and OBSCENE language in a public place, VAGRANCY,loitering, causing a crowd to gather in a public place, or annoying passengers on a mode of public transportation have been regarded as disorderly conduct by statute or ordinance. The offense is not committed unless the act co mplained of clearly falls WITHIN THE STATUTE. In most jurisdictions, the decision of whether or not the act complained of is disorderly conduct is made by a judge. Following this determination, a jury decides whether or not the accused is guilty of the offense, provided there is a QUESTION OF FACT to be decided. The punishment for disorderly conduct is usually fixed by statute. Under most statutes the penalty consists of a fine, imprisonment, or both. Some statutes provide that an accused cannot be imprisoned for disorderly conduct unless he or she has been given an opportunity to pay a fine and has defaulted on the payment. CROSS REFERENCE Disturbance of the Peace. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISORDERLY CONDUCT 483 DISORDERLY HOUSE A place where individuals reside or which they frequent for purposes that pose a threat to public health, morals, convenience, or safety, and that may create a public nuisance. A disorderly house is an all-inclusive term that may be used to describe such places as a house of prostitution, an illegal gambling casino, or a site where drugs are constantly bought and sold. It is any place where unlawful practices are habitually carried on by the public. Various offenses concerning disorderly houses exist at COMMON LAW and under criminal statutes. The mainte nance of a DISORDERLY HOUSE is considered to be an ongoing offense and, at times, the offense involves a specific type of place, such as a bordello or gaming house. The offenses are divided into four classes, which encompass keeping or maintaining a disorderly house, letting a house to be used as a disorderly house, frequenting or abiding permanently in a disorderly house, and disguising a dis- orderly house by displaying a sign of an honest occupation—such as disguising a house of PROSTITUTION as a dress shop. Statutes In most jurisdictions, the maintenance of a disorderly house is an offense and, in order to be valid, each statute must clearly state the nature of the offense. Ordinarily, most statutes merely define the common-law offense rather than create a new statute. In states with statutes that provide for the punishment of an offense but do not define what a disorderly house is, the common law is examined to determine w hat the definition should be. In contrast, where the statute embodies a characterization of the house as well as prohibited conduct therein, the statute itself determines what constitutes the offense. The prohibition against disorderly houses and the offenses they encompass are valid exercises of the POLICE POWER of the state. Elements The elements of the offense of maintaining a disorderly house depend on statutory provisions that vary from state to state. A place may be named a disorderly house if alcohol is sold on the premises and if the law in that jurisdiction prohibits such sale. Essential to all offenses involving disorderly houses is the character of the house. House or Other Building or Place The commission of the offense is dependent upon the presence of a house or place of public resort, the physical characteristics of which are IMMATERIAL. A disorderly house may be any place, including a room in a building or a steamship, an apartment, a garden, or a space under the grandstand at the racetrack. The character of the place as a public resort is important. The general rule is that a disorderly house must be a place to which the general public or a segment of the public retreats for immoral purposes without prior invitation. A disorderly house may be used for other purposes that are not prohibited by law in addition to immoral purposes, but this in no way affects its classification as a disorderly house. Annoyance or Injury to the Public The annoyance to the general public, as opposed to anyone in particular, is an essential element of the definition of a disorderly house. This annoyance or injury is based on the fact that activities being conducted are considered de tri- mental to public morals, welfare, and safety. They need not disturb the peace and quiet of a neighborhood to be construed as disorderly. A house where drugs are sold quietly or where a bordello is discreetly operated would be consid- ered an endangerment to the public peace. Persons Liable The liability of those concerned in offenses in connection with disorderly houses is not based upon their civil or contractual status. Some statutes specify who may be liable and in such cases, only those designated may be prosecuted. Partners, servants, and agents as well as the officers of a corporation have all been held liable for the operation of disorderly houses and the various offenses committed on the premises. DISPARAGEMENT In old English law, an injury resulting from the comparison of a person or thing with an individual or thing of inferior quality; to discredit oneself by marriage below one’s class. A statement made by one person that casts aspersions on another person’s goods, property, or intangible things. In torts, a considerable body of law has come about concerning interference with busi- ness or economic relations. The tort of INJURIOUS FALSEHOOD ,orDISPARAGEMENT, is concerned with GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 484 DISORDERLY HOUSE the publication of derogatory information about a person’s title to his or her property, to his or her business in general, or anything else made for the purpose of discouraging people from dealing with the individual. Generally, if the aspersions are cast upon the quality of what the person has to sell, or the person’s business itself, proof of damages is esse ntial. Disparagement of goods is a false or mislead- ing statement by an entrepreneur about a competitor’s goods. It is made with the inten- tion of influencing people adversely so they will not buy the goods. Disparagement of title is a false or MALICIOUS statement made about an individual’s title to real or PERSONAL PROPERTY. Such disparagement may result in a PECUNIARY loss due to impairment of vendibility that the defamatory statements might cause. CROSS REFERENCE Defamation . DISPARATE IMPACT Disparate i mpact is a theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjusti- fied adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect. Under Title VII of the CIVIL RIGHTS Act of 1964, plaintiffs may sue employers who discrim- inate on the basis of race, color, gender, RELIGION, or national origin. Employers who in tentionally discriminate are obvious candidates for a lawsuit, but the courts also allow plaintiffs to prove liability if the employer has treated classes of people differently using apparently neutral employment policies. The DISPARATE IMPACT theory of liability will succeed if the PLAINTIFF can prove that these employment policies had the effect of excluding persons who are members of pro- tected classes under Title VII. Once disparate impact is established, the employer must justify the continued use of the procedure or proce- dures causing the adverse impact as a “business necessity.” Proof of discriminatory motive is not required, because in these types of cases Congress is concerned with the consequences of employ- ment practices, not simply the motivation. If the employer proves that the requirement being challenged is job related, the plaintiff must then show that other selection devices without a similar discrimi natory effect would also serve the employer’s legitimate interest in efficient workmanship. The Supreme Court, in Griggs v. Duke Power Co. (401 U.S. 424, 91 S. Ct. 849, 28 L.Ed.2d 158 [1971]), articulated the disparate impact theory and constructed a model of proof that the plaintiff and defendant must use in presenting their cases. In Griggs, the employer required a high school diploma and a passing score on two professionally develop ed tests. Although the lower courts found no liability because the plaintiff failed to prove that the employer had a discriminatory motive for the requirements, the Supreme Court reversed the decision. The Court stated that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” In a famous statement, the Court asserted that the “absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built in headwinds’ for minority groups and are unrelated to measuring job capacity.” In the three-step model defined by the Griggs Court, the plaintiff must first prove that a specific employment practice adversely affects employment opportunities of Title VII pro- tected classes. If the plaintiff can establish a disparate impact, the employer must demon- strate that the challenged practice is justified by “business necessity” or that the practice is “manifestly related” to job duties. The courts, between 1971 and 1989, used these two phrases interchangeably. If the employer does not meet the burdens of production and persuasion in proving business necessity, the plaintiff prevails. If the employer does meet these burdens, the third step requires the plaintiff to demonstrate that alternative practices exist that would meet the business needs of the employer yet would not have a discriminatory effect. The plaintiff has the burden of persuading the fact finder that the employment practice used by the employer adversely affects the employment opportunities of a Title VII protected class. If the plaintiff fails to meet this burden, the court will dismiss the action under Rule 41(b) of the Federal Rules of CIVIL PROCEDURE . GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISPARATE IMPACT 485 Demonstrating that the employer’s work- force does not reflect the racial, ethnic, or gender percentage of the population of the area does not prove disparate impact. Such an imbalance may be the product of legitimate factors, such as geography, cultural differences, or the lack of unchallenged qualifications for the job. Therefore, it is incumb ent upon the plaintiff to show that the imbalance is because of the challenged practice. The most compelling evidence of disparate impact is proof that an employment practice selects members of a protected class in a proportion smaller than their percentage in the pool of actual appli cants, or, in promotion and benefit cases, in a proportion smaller than in the actual pool of eligible employees. If the plaintiff proves that the employer’s practice had a disproportionate impact on a protected class, the burden shifts to the defen- dant to justify its use of the challenged practice. Griggs labeled this burden as business necessity, but suggested that exclusio nary practices would be justified if they were manifestly related to job duties. Business necessity is the only known defense against the accusation that a personnel practice denies protected classes equal opportunity for hire, promotion, training, earnings and any other term or condition of employment. Three condi- tions must exist before business necessity can be asserted: (1) The standard used as the basis for the employment practice must be apparently neutral; (2) the standard must be uniformly applied by the employer; and (3) the standard must have a disparate impact on a protected class. The term business necessity is a fluid concept rather than a bright-line rule (a firm legal standard that courts are required to honor without regard to the particular circumstances of the case being heard). In some cases, courts conclude that business necessity is established by showing a reasonable relationship between the practice in question and the employer’s business needs. However, the majority of courts hold that an employment practice having a discriminatory impact can be justified on business necessity grounds only if it is “essential” to the safety and efficiency of the employer’s operations. These courts contend that the mere fact that the employment practice serves legiti- mate management functions will not justify discrimination. The Supreme Court, in Wards Cove Packing v. Atonio (490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 [1989] ), revisited the concept of business necessity and realigned the burdens of proof and persuasion. The Wards Cove Packing Company employed low-paid cannery workers in its salmon canning facility in Alaska and higher-paid non-cannery workers at the com- pany offices in Washington and Oregon. Non- white workers filled a high percentage of the cannery worker positions; primarily white work- ers held the non-cannery worker jobs. The court of appeals found this statistical disparity suffi- cient to establish a PRIMA FACIE case of disparate impact. The Supreme Court reversed and remanded because the statistical proof the plaintiffs offered was not adequate. As to the defendant’s BURDEN OF PROOF , the Court stated that the employer “carries the burden of producing evidence of a business justification for his employment practice. The BURDEN OF PERSUASION, however, remains with the disparate-impact plaintiff.” This meant that although the employer had to show a legitimate business reason for using a test or certain job requirements, the plaintiff had to prove that he or she was denied a desired employment opportunity based on race, color, religion, gender, or national origin. This pushed the burden closer to that of disparate treatment, where the plaintiff has to show intentional discrimination by the employer, which is often difficult to prove. In addition, the Court held that just because the plaintiff could offer nondiscriminatory alternatives did not prove that the employer had improper motivations for the use of the employment practice. The Wards Cove decision was severely criti- cized by civil rights leaders, who believed the Supreme Court had made disparate impact cases almost impossible to win. Congress responded by passing the Civil Rights Act of 1991, which overturned Wards Cove. In effect, Congress reversed the Court’s holding that the burden of proof must remain with the employee at all times. Therefore, once the plaintiff has carried the burden of proving that the challenged employ- ment practice causes a disparate impact, the employer must not only articulate a business justification for the practice but must also prove the validity of the asserted justification. The Supreme Court has put limits on the disparate impact theory. For example, the Court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 486 DISPARATE IMPACT has made it clear that it is not unlawful for an employer to apply different standards of compensation or different terms or conditions of employment to employees, if the employer acts according to a legitimate seniority system. This is true even if the seniority system has a discriminatory effect, as long as the system was not intended to be discriminatory. In addition, the Court for many years rejected the application of the disparate impact theory AGE DISCRIMINATION cases under the Age Discrimination in Employment Act of 1967. However, in Smith v. City of Jackson (544 U.S. 228, 125 S. Ct. 1536, 161 L. Ed. 2d 410 [2005]), the Court recognized that a plaintiff can bring a disparate-impact claim under the ADEA. In a 2008 ruling, Meachum v. Knolls Atomic Power Laboratory (__U.S.__, 128 S. Ct. 2395, 171 L. Ed. 2d 283), the Court held that the employer bears the burden of proving that an action was for a reason other than age, rather than requiring an employee to prove that the action was not based on such a factor. FURTHER READINGS Covington, Robert, and Kurt Decker, 2002. Employment Law in a Nutshell. 2d ed. Saint Paul, Minn.: West Group. Fick, Barbara. 1997. The American Bar Association Guide to Workplace Law: Everything You Need to Know About Your Rights As an Employee or Employer. New York: Times Books. CROSS REFERENCE Employment Law. DISPOSABLE EARNINGS That portion of one’s income that a person is free to spend or invest as he or she sees fit, after payment of taxes and other obligations. Legally mandated deductions are those for the payment of taxes and SOCIAL SECURITY. Any deductions for medical insurance, PENSION plans, life insurance, or employee savings plans do not qualify and must be includ ed in the DISPOSABLE EARNINGS . Take-home pay is, therefore, not necessarily synonymous with disposable earn- ings because of this distinction between the deductions. The federal CONSUMER CREDIT PROTECTION ACT (15 U.S.C.A. § 1601 et seq. [1968]) establishes a minimum amount of disposable earnings that can be garnished by a debtor’s creditors. The lesser figure of 25 percent of a worker ’s weekly disposable earnings or the amount by which his or her disposable earnings exceed thirty times the maximum hourly wage is subject to GARNISHMENT. State laws also impose restrictions on the garnishment of debtor’s wages. DISPOSITION Act of disposing; transferring to the care or possession of another. The parting with, alienation of, or giving up of property. The final settlement of a matter and, with reference to decisions an- nounced by a court, a judge’s ruling is commonly referred to as disposition, regardless of level of resolution. In criminal procedure, the sentencing or other final settlement of a criminal case. With respect to a mental state, means an attitude, prevailing tendency, or inclination. DISPOSITIVE FACT Information or evidence that unqualif iedly brings a conclusion to a legal controversy. Dispositive facts clearly settle an issue. The fact that the defendant in a PERSONAL INJURY case ran a red light and hit the PLAINTIFF with his or her car settles the question of the defendant’s NEGLIGENCE and is, therefore, a DISPOSITIVE FACT. DISPOSSESSION The wrongful, nonconsensual ouster or removal of a person from his or her property by trick, compulsion, or misuse of the law, whereby the violator obtains actual occupation of the land. Dispossession encompasses intrusion, disseisin, or deforcement. DISPUTE A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined. A labor dispute is any disagreement between an employer and his or her employees con- cerning anything job-related, such as tenure, hours, wages, fringe benefits, and employment conditions. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISPUTE 487 . RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DISFRANCHISEMENT 479 which was one of the most heavily contested and highly. the disposition of the action from the time of the filing of the action to the actual trial of the issues. It is also GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISMISSAL 481 designed to minimize,. body of law has come about concerning interference with busi- ness or economic relations. The tort of INJURIOUS FALSEHOOD ,orDISPARAGEMENT, is concerned with GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD