Question: Wal-Mart's Transportation Division includes approximately 8,000 drivers in forty-seven field transportation offices nationwide. The hiring process for drivers at every transportation office is identical. First, new drivers are recruited almost exclusively through the "word of mouth" referral by current Wal-Mart drivers. Wal-Mart provides current drivers with a "1-800 card" to pass out to prospective applicants. The card lists the minimum driver qualifications and a 1-800 number drivers can call to request an application. Wal-Mart does little advertising of its OTR driver positions in addition to the 1-800 cards. Potential applicants who call the 1-800 number, regardless of the transportation office to which they wish to apply, are initially processed and screened at Wal-Mart's Bentonville headquarters. An application is then sent to the potential applicant. The applicant is instructed to return the completed application to the Bentonville headquarters. If the application is completed and the applicant meets the minimum requirements, and if the applicant's preferred transportation office is currently hiring, the application is then forwarded to the appropriate transportation office. Sometimes an applicant submits an application directly to a transportation office.

After the application is forwarded from the Bentonville headquarters to the appropriate transportation office, a screening committee, consisting of current drivers at the transportation office, decides which applicants will be granted an interview, and then interviews those applicants. A management committee then interviews applicants who successfully complete the screening committee interview. Wal-Mart has no written or objective criteria to guide the driver screening committees when those committees analyze applicants during the hiring process. Wal-Mart does require each driver screening committee to be 50 percent diverse, but that does not guarantee that any member of the screening committee is African American. Tommy Armstrong and Darryl Nelson are African-American truck drivers who applied for positions as over-the-road ("OTR") truck drivers at transportation offices operated by Wal-Mart; their applications were rejected. They discover that African Americans represent 8.4 percent of Wal-Mart's OTR drivers nationwide; a study prepared for the American Trucking Association using U.S. Census Bureau data indicates that African Americans represent about 15 percent of persons employed as "driver/sales workers or truck drivers" in the "truck transportation" industry nationwide in the U.S. Armstrong and Nelson decide to file a suit under Title VII against Wal-Mart. Would their claim involve disparate impact or disparate treatment discrimination? What problems may be raised by the"word of mouth"referral system for recruiting new drivers? What defenses could Wal-Mart raise in response to their suit? See Nelson v. Mal-Mart Stores, Inc. [2009 WL 88550 (E.D. Ark. Jan. 13, 2009)].