Status of Disparate Impact Theory of Discrimination – Hiring Procedures Disproportionately Affecting One Racial or Sexual Group Over Another

The webinar was led by Jim Wimberly, and the subject was the current status of the disparate impact theory of discrimination. The EEOC is currently not processing discriminatory impact cases, but employers cannot assume this theory of bringing discrimination cases, particularly class action, is over. This webinar explored the current status and how employers can best avoid being defendants in class actions involving disparate impact theories.

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From Webinar: Key Employer Action Items

James W. Wimberly (00:00):
Welcome to our Friday webinar on the current status of adverse or disparate impact. And I use those terms interchangeably as everyone does adverse impact and disparate impact mean the same thing. So I'm Jim Wimberley, and this is Robin Turnham, my assistant. She's gonna help me with any technical issues. Let me give you an overview of what I'm gonna try to accomplish today. Obviously the subject is what's the current status of adverse impact, but I'm gonna give you some history. I'm gonna talk about the changes that have been made. I'm gonna try to give you the reasons for the changes that have been expressed the current enforcement practice and lessons to avoid being victimized by adverse impact cases. Let's start with the history. As we know, our major civil rights law title VII of the Civil Rights Act of 1964 was passed as the initial federal law against all types of employment discrimination, which was not illegal under federal law.

James W. Wimberly (01:13):
Before then, it was generally thought that the law was intended to apply to what we might call intentional discrimination. Now intent, I'm gonna use intentional discrimination and disparate treatment. That's one and the same. There are really two types of theories of discrimination. There's disparate treatment. That's when I intentionally treat a protected group less favorably than another protected group. And that was what most thought was the intent of the passage of Title VII back in 1964. However, fast forward to the early 1970s and a case called Griggs versus Duke Power came out. That is one of the famous most famous Supreme Court rulings on employment discrimination ever issued. It dealt with a requirement in a North Carolina employer Duke power of a high school education requirement for applicants for jobs. And the effect of having a high school education requirement was that a high percentage of Caucasian applicants pass that requirement, but a much lower percentage of African-American candidates pass that requirement.

James W. Wimberly (02:34):
So the result of that was that under these neutral hiring requirements applied equally to every applicant. Many fewer African-American applicants were hired than Caucasian applicants because of the effect of the high school degree. So that this was the first Supreme Court case to recognize that there was a different type of discrim discrimination that was not intentional, unintentional discrimination, in which, if a practice was discriminatory in effect, regardless of the intent behind it, if it was discriminatory in effect because certain groups did not pass the test or criteria like others, then that would be considered under Title VII as being unlawful unless the employer defendant could show a job related business necessity for its use. And this is a theory that we're talking about that Griggs versus Duke power concept was later, what we call codified written into the statute and amendments to Title vii, and it remains the law of the land today.

James W. Wimberly (03:48):
So let's start with the premise that adverse impact theories in litigation is the law of the land under Title VII of the Civil Rights Act of 1964. And again, if I had to put in one or two sentences, what that means is even though you apply the same criteria to everyone, if it has the effect of keeping out certain protected groups, and of course we're all in protected groups, remember, male, female, whites, blacks, all of us are protected under these civil rights laws. If one group is affected a lot more than others, by not meeting the qualifications, the employer may have to show that there's a real business need, which the law refers to as either job related or business assesses. And I use those two terms interchangeably. Sometimes we say job related business necessity. Now, how this often comes out in the cases is that employers go to great efforts to validate their hiring criteria.

James W. Wimberly (04:57):
And let's back up a minute and talk about the most common cases in which this adverse impact theory is applied. It's more commonly applied to hiring cases. Now, it could be applied in theory to promotion cases and the layoff case, but most of the cases under an adverse impact theory are brought under hiring situations. Another example or criminal records. These cases often claim that certain groups of people are more, have more criminal records, and therefore they're more likely to be adversely impacted by the employer's hiring requirements that disqualify those with criminal records. So we have all sorts of rules dealing with that particular aspect of adverse impact. Now, how do you determine adverse impact? I've kind of described what it is where one group is more heavily affected than another due to a selection criteria. How is that determined whether one group is more affected?

James W. Wimberly (06:05):
Well, number one, it's well settled. It has to have a substantial impact, a substantial adverse impact. And to prove that substantial adverse impact, two theories are used, I'm gonna describe both of them. One of 'em, and you might say the most sophisticated and the most authentic standard is standard deviation analysis. Now, I'm gonna simplify all this and explain it in very general terms. Standard deviation analysis is a statistical way of determining whether one group is more adversely impacted than another. Talking about protected groups, we're all in one protected group or another. And that rule generally says under Supreme Court law that if the impact on one group exceeds two or three standard deviations, that's evidence of adverse impact on that group. And what a two or three standard deviations mean in layman's terms, it basically means that this results would only have occurred naturally about 5% of the time.

James W. Wimberly (07:16):
It's an unnatural result, you might say, because it rarely occurs less than 5% of the time, it would only occur by chance around 5% of the time. So it must have been something else operating there that caused that effect. Now, this type of analysis is based upon expert witnesses and statistics and all that sort of thing. Now, for years and years, no one understood how to run these tests of statistical analysis, including the government. You would be amazed as how recently even the government leaders didn't understand statistical analysis of adverse impact. So way back in 1976, all the government enforcement agencies came up with guidelines on employee selection procedures, and they came up with a test or rule of thumb that everybody can understand. It was called the four fifth Rule because they didn't understand statistics. And courts today still sometimes use the four fifth rules, and employers still argue the four fifth rule at times.

James W. Wimberly (08:26):
And it's an easy way that each one of us, whether we know statistics or not, can look at our data and determine whether there's adverse impact under this sh rule. And what the rule says is the four fish rule, if the plaintiff's group one, the protective groups selection rate is less than 80% of the most preferred group, the highest selected group, then that constitutes adverse impact. Lemme give you an example. Say one company hires 50% of all Caucasian applicants, but only 40% of African American applicants. Well, that employer would pass the for fifth rule by the skin of his teeth because the selection rate of the African Americans was for fifth that of the Caucasians. So that's a very simple way, simple math that all of us can look at and see if it appears that there's some sort of adverse impact operating here.

James W. Wimberly (09:31):
Now, to make things more complicated, and I'm only gonna mention this without without going into a lot of detail because it's very difficult traditionally the government only looked at the bottom line, meaning the total applying and the total hire. But later, the courts have required the analysis to apply not to the total hiring or promotion process, but to each criteria or test used. So it can get be complicated because if one aspect of the hiring requirements has an adverse impact that can still be considered unlawfully even though the hiring process as a whole passed the four fifth rule or statistical analysis. Now, I realize all this is kind of confusing, but believe me, you've got a very simplistic version of it. So we can look at our own data to see if we pass the four fifth rule, either overall or based on each hiring criteria.

James W. Wimberly (10:35):
But I want to shift to the question, suppose we have an adverse impact in some test or criteria we're using. And by the way, these concepts, some people confuse 'em, it has to be a test. Well, there's truth to that, but a test is really under the law. Any selection criteria, for example, an experience requirement, a requirement, you not have a felony conviction. Those are selection criteria. Educational requirements are selection criteria. So these rules or concepts apply to any selection criteria and not just paper and pencil tests. So if you have adverse impact, does that mean you're violating the law? No, not necessarily. It only shifts the burden to the employer to show that it's criteria that's keeping out these protected groups to a greater extent is valid or a job related business necessity. In other words, the test accurately predicts successful performance. Just to give you this example I saw a presentation many years ago that wasn't called AI back then, but it was ai and it was a Fortune 500 company.

James W. Wimberly (11:53):
And they had come up with an electronic system for determining successful job applicants who were more likely to be successful employees and more likely to remain with the employer. And they went through a lot of trouble to professionally develop this methodology to hire better employees that were more likely to remain with the employer. And so that is one example of somebody proving the validity, or you might say accuracy of its selection criteria. Does the test measure successful performance? And I'm darn sure not going to get into any details on the methods of proving that a selection criteria is valid. I just want to give you a little hint at the ways it's done. There are three types of professional validity to proof. They're called criterion related content and construct. I'm only gonna discuss the first two. The third is hardly ever used criterion related is that there have been studies somewhere of a sample group of applicants who meet the requirement versus those who don't meet the requirement.

James W. Wimberly (13:09):
And a test is determined whether the requirement is successful in predicting good job performance. And you might say it's a test run of the criteria to see if it works. That can be done by the employer utilizing the criteria or test or by some third party or test done elsewhere in many circumstances. That's one way the, the simplest way you could call it the common sense way is call content validity. Does the test measure a portion of the work, a significant portion of the work? For example I have argued in cases that experience requirements ought to be content valid because it measures whether a person has successfully done that job before. I suppose background checks in certain ways can be considered content valid. So those are the ways, if an employer has to defend itself in a case, it shows that a test is helpful, indeed necessary for successful performance or accurately predicts successful performance in some way. Now what's the current status? Well, I told you that this theory has been around since the seventies. And get that, I'm sorry. I'm sorry. <Laugh>

James W. Wimberly (14:39):
My cell phone talking to <laugh>. He said he didn't, she said she didn't get it. I hope you're getting it, but <laugh>. Anyway what happened approximately a year ago, indeed, almost exactly a year ago, the federal government, and I'm talking about the Equal Employment Opportunity Commission, and I'm talking about the Department of Justice, said that they were no longer going to apply adverse impact analysis in bringing discrimination cases. In other words, the EEOC currently will not even investigate an adverse impact case. The Department of Justice will no longer sue on an adverse impact case theory. Now understand we're talking about cases in which there's a same job requirement of applicable to everybody, and there's no evil intent in this having this requirement. In other words, in the sense of mental state, the employer is totally innocent of any wrongdoing. The only problem is the effect of this requirement has been a lesser proportion of protective group members are hired.

James W. Wimberly (15:51):
The government will no longer sue on that theory. Does that mean the theory is gone? No, because if you look at the number of lawsuits, file for discrimination, ask yourself what proportion of these cases are filed by private plaintiffs, plaintiff's lawyers versus the government. I don't have the exact statistics, but my impression is that more than 90% of all discrimination cases are filed by private plaintiffs, meaning non-government plaintiffs. It's not the EOC suing, it's a private plaintiff that's suing. So we still have to comply with all of these legalisms that I've just been discussing with you. We have to be concerned not only about intentional discrimination, which we treat somebody differently because of their minority status or sexual status or what have you. But also we have to worry about cases in which in our mind is totally the quality minded. But even though we apply the same standard, everybody, it's keeping out a significantly higher proportion of one protected group or another.

James W. Wimberly (17:08):
And if you think about this, it, it's kind of a dangerous theory because what are the odds that whatever requirement we use every protected group is gonna have exactly the same level of passing that criteria? I, I would offer to you, there are always going be differences in results of who passes certain type tests or hiring criteria than others. That's just the way the world works. So it's a dangerous theory, but it only applies if there's a substantial impact on one group or another, either statistically or by application of this four fifth rule that I described to you earlier, that you can run yourself rather easily. So I think one purpose of having this webinar today is people may have gotten the idea that since the government is no longer going forcing the adverse impact or disparate impact theory, which are one in the same term that you're off the hook, but no, you're not it really doesn't change that much that the EEOC won't investigate it or enforce it because there are a lot of lawyers out there that just love to handle these kind of cases.

James W. Wimberly (18:23):
And why do they love these kind of cases? They get attorney's fees and they get lucrative settlements. I, I'm, I will tell you one more story. I had a case here in, in Georgia, this was probably 10 years ago where a a plaintiff had sued a trucking company and this plaintiff was so flaky, he, he did it himself, pro se without a lawyer and so forth, that I met with him personally to get him signed the settlement agreement and to give him a check because the client, I think, settle this case for less than $5,000. And there was no obligation to hire the person or anything like that. It was a cheap settlement, and it ended a lawsuit and the client wanted to go that way. But this guy was so flaky, I met with him because something was wrong with all of this.

James W. Wimberly (19:22):
And when I met with him, he told me about it. I can't remember whether I asked him or he bragged about it. He said he made a living outta Sue and Implo that he had certain double minority status, and I, I think it was national origin and religion and all that sort of thing. And he would call and talk to interviewers and record the conversations, which is legal in Georgia, and he baited them into making discriminatory statements, then sued them, and then came in and offered employers settlements that were relatively cheaper than litigation, and he made a living out of that. So there are people around that do that sort of thing. So anyway I want you to be aware that even though the federal government may, oh, I notice I said federal government, you can still have state laws and state governments sue, but the federal government will no longer sue on adverse impact theories.

James W. Wimberly (20:20):
That doesn't mean private plaintiffs won't. So why did the government make this change in enforcement? I, I always find it interesting and helpful to look at the reasons things are done, helps you figure 'em out better. And plus it's interesting. Well, over the years, our concepts of discrimination have greatly changed. The first discrimination case I ever was involved in defending, I'm not going to tell you what year it was, but it went all the way to the US Supreme Court and resulted in a Supreme Court ruling. I'll tell you the name of the case, it was Frank versus Bowman Transportation. And the company had never hired an African American employee. Many of the things occurred in this case in the sixties. The case was tried, as I recall, in 72 7 3. And the first two African Americans hired were fired for what apparently were legitimate reasons, but one of 'em could have been set up.

James W. Wimberly (21:18):
I don't know. But anyway, it, it resulted in a case. And back in those days, because of the past history of determination, all cases or many cases were brought as class actions. The courts realized that we had a new law and a new era, and they were gonna enforce equal employment opportunity. And so the courts would allow cases to be brought as class actions virtually all the time. It was virtually automatic if a plaintiff wanted to bring a class action and represent not only himself or herself, but the whole group of people that were working. If that same protected group, they were allowed to do so. But as society became more accepting of equal employment, this is my own analysis, I believe the legal system realized that most people want good workers and aren't really worried about what race, sex, et cetera they are.

James W. Wimberly (22:17):
So the, the society norms changed, and now we have less class actions because the courts look much more closely at whether a plaintiff can bring a class action. A class action is of action for others and not just one plaintiff. I've had class actions where there were thousands of potential class members got one going on right now like that. Those are big ticket cases because it's one thing to settle with one person, but you start settling the 5,000 price goes way up. So society's a now there's been another swing in the last few years. Here's what it is, here's what it is. The current swing is that society or our legal system, I'll put it that way, doesn't think quotas are the way to go. The philosophy now is that each individual has a right not to be discriminated against on the base of race, sex, and national origin.

James W. Wimberly (23:17):
Each individual has their right. Doesn't matter whether they're white, black, Hispanic, Asian, male, female, whatever they are, each person has a right to be treated under equal opportunity principles. And when you get into situations that some say affirmative action had gotten into to some, it looked more like a quota system, and the current law has moved against that concept. So I, I believe the system or, or some of the administration felt that the best way to provide equal opportunity is to provide it for each individual and not based on the class they're a member of. And that's what this is all about. Why they don't believe in the numbers game anymore. Consider a voting rights case that just came down this week by the US Supreme Court. I hadn't read the decision. I've read what's been said about it. And it essentially said that numbers don't prove intentional discrimination.

James W. Wimberly (24:15):
So this is some of the reasons is a change. There was even a Supreme Court case several years ago against Harvard and University of North Carolina that said, the goal to have a racially diverse student body doesn't allow school to discriminate among applicants for admissions. So we're moving towards the system that kinda gets away from numbers and looks at the rights of a person as an individual not to be discriminated against. And that's essentially the reason why the government has changed its enforcement practice. But this law still remains in terms of private plaintiffs and most 90% of cases are brought by private plaintiffs. So you know, I, I could give you some examples, but I'm gonna move on and if we have a, some other time, I'll maybe discuss some of these cases. I'm going to now move to the subject of what employers should do.

James W. Wimberly (25:16):
Since I've told you that the current status of adverse impact cases is, it still applies to private plaintiffs, first thing I'd do if I was an employer, I look at what job criteria are actually applying. Some of us may not know that, and and I'm gonna talk about that. The more logical, the more content valid, the requirement appears to be, you know, good prior work record sounds more content valid to me, certainly logical, you know, at least know what what you're using to decide whether to hire, promote people or lay 'em off. Do these criteria appear to be valid? Are they job related? Are they important to the business? How logical are they? Understand the courts don't use the tests. I just mentioned it, whether they're logical, I'm only saying some common sense tests apply in some circumstances.

James W. Wimberly (26:17):
Just to give you a case that was an example of this, a Supreme Court case, I believe it's a firm code case that arose in New York dealing with employers there in the construction industry that only had hired persons they knew had prior skills. And there were no statistical analysis done of who this affected more than others. But the court said, Hey, it seemed to them, if personal knowledge of having required skills that seemed to be job related to the US Supreme Court. So some criteria are deemed content valid, even though they hadn't been professionally developed. They're extremely logical, you might say, even though the court doesn't use that terminology. So looking at the criteria we use, examining whether it appears to be valid or not. Now what are some more specific suggestions I have? First, are you using some third party tests or something to make hiring decisions or using AI to make hiring or promotion decisions?

James W. Wimberly (27:27):
Get some human element involved in it too. And, and here's you know, if, if you're relying solely on ai you stand or fall on certain technical things and it helps to have a human, I mean, we don't think judges and juries are going to react well to employers that rely on a black box to determine all their hiring and promotion decisions. Having a human element can not only check on errors, but potentially provide a separate defense. Just like when you're making a decision whether to hire somebody or some decision that has elements of potential discrimination claims, the, the more managers you have involved making a decision, the better off you are because it's harder for a judge or jury to feel that a whole group of managers are all discriminators. You might have a rogue person that's a discriminator, but if you've got others making a lawful decision, you should win the case.

James W. Wimberly (28:29):
You know, there's a analogy here to a situation. If you've got two good reasons to fire somebody, use both of them. If one fails, you still got the other one to rely on. So now some other suggestions I have applicant flow logs. The old affirmative action requirements required us to have applicant flow logs, which we retained, that identified race, sex, national origin of each applicant. That is the data that plaintiffs use to make out adverse impact cases. If they don't know the race, sex, et cetera, of the persons that are applying, then it's very hard for them to show these statistical tests of adverse impact affecting protected groups. So the government, federal government at least no longer requires log hiring logs, nor does it require hiring logs that identify race, sex, national origin, et cetera, of applicants.

James W. Wimberly (29:35):
So frankly, I wouldn't keep such data on applicants. I'm, I'm involved in a case right now that's still ongoing. It's on appeal of the 11th circuit. And a big part of the case is to whether the company had enough racial and sexual identification as applicant flow log to determine who was adversely affected by the hiring criteria. So I I, I wouldn't maintain racial and sexual information on applicant unsuccessful applicants. Now, current employees a different story. The EEO one requirements, which we normally have to comply with, require employers of a hundred or more employees to send in an annual report of current employees and their race, sex national origin. I'm not talking about that. I'm talking about job advocate. We don't have any obligation to keep racial and sexual information on the people that apply the workforce. So I wouldn't keep those records anymore.

James W. Wimberly (30:43):
Now, another thing to think about, and this is more optional are we keeping records of why we don't hire people? Now, lemme tell you the pros and cons of that. Lawyers love documentation, defense lawyers like me, but we love good documentation. <Laugh>, there's only thing, there's only one thing worse than no documentation, and that's bad documentation. <Laugh>, if you document that you've discriminated, you know, that ain't a good thing for your defense unless it's an internal study that's legally protected and privileged. You might want to know that, but you certainly. So another thing to think about, do we document why we don't hire people? And you know, one day we may have to show evidence of why somebody wasn't hired. And but I worry about management documenting reasons without any guidance because I have seen job applications where an interviewer, I mean this, this few years ago, had written some things on a job application in that I wouldn't want to show up in court.

James W. Wimberly (31:59):
So one solution to this problem, if you want to have documentation of why you don't hire certain people or promote certain people or so forth, is to have a list of lawful reasons that you most commonly use and require the person filling in the reason to put down one of those reasons. And that way it's much easier to defend later on if you're challenged. Now that's just a, a, a possible solution that a lot of companies use. I could talk about layoffs and avoiding adverse impact and layoffs, and I think I will say something about it and then we'll open the floor for questions. I would look on a preliminary basis of racial and sexual information on those you're, you're laying off so you can get a feel for whether it's defensible. You might want to do it under attorney client privilege and advice of an attorney suggesting you do that.

James W. Wimberly (32:52):
And you know, it's easier to lay off, I think, by job category than by person, because if you're laying off by job category, it's less based on the characteristics of the individual holding that job. Those are just some general suggestions. So I wanna sum up everything I've said and open the floor to questions. I've said that the federal government no longer brings cases or even investigations dealing with whether a neutral criteria of hiring promotion applied to everybody is adversely affecting some protected group to them. Now, that's a numbers game that they don't want to get involved with because each individual is protected individually and not as a client. Each person has a right to equal employment opportunity. Private lawsuits on adverse impact are still going on. I will say I believe there are not as many as there used to be because employers are more knowledgeable and have eliminated the most extreme situations that likely result in litigation.

James W. Wimberly (34:07):
And I think our judicial system is more comfortable with the fact that most employers want good workers and therefore class actions are harder to get certified by plaintiffs. So that's the current status. You know, if I had to put it in another respect you don't get as many adverse impact cases now when I say you the employer community, but when you do get an adverse impact case, it's gonna be a big case involving a lot of money and it's hard to settle the class action. With that, I'm gonna open the floor to questions. Can you un unmute? People are alright, I think we've unmuted you. Have we? I think so. Okay. Do I have any questions? Can

Speaker 2 (34:54):
You hear me

James W. Wimberly (34:54):
Okay? Good. I hear you.

Speaker 2 (34:57):
I just wanted to get your thoughts. If, I'm not sure if you are aware of the Winthrop, the recent case of the Winthrop professor and HR and one of the deans sort of conspiring to change job descriptions to potentially make a professor not qualify for a job. Have you heard about that, that recent situation at winter?

James W. Wimberly (35:19):
No, I'm familiar with winter college, but I don't know that situation.

Speaker 2 (35:23):
Yeah, essentially it, it looked, it appears that one of the dean and one of the representatives in hr worked together to alter a job description so that a particular professor that didn't have a certain qualification could actually apply to the role. And so that another one could, you know, could potentially appear to be disqualified. So it was caught on a teams meeting of them saying that they were concerned about this one particular professor who was African American applying to a role versus this other candidate applying to the role who really wasn't qualified at first. So, just, just wondered if you ever, ever seen anything or heard anything like that and what, what your thoughts were if you were familiar with that Winthrop case? Well,

James W. Wimberly (36:11):
I, I'm, I'm not familiar with the case unfortunately, but I will tell you two or three things about that. That is a classic disparate treatment case. In other words, the theory of the claimant is that they gerrymandered my job description so that I wouldn't get the job and another person outside my protected class would get it. I would say to you that that is a egregious situation. I can see a judge, a jury being very upset about that, but a potential defense, I mean, a, a potential defense would be that even if they altered the job description, they did not do it because of the race of the people involved. You always have that defense and then it becomes a, a test of proving intent. And it could be come up in situations like I'm, I'm only guessing now but anytime an employer does something so highly unusual, it creates suspicion.

James W. Wimberly (37:31):
So you start off with a proposition that altering a job description to favor one candidate over another, just on its face sounds, you know what I mean? Highly suspicious. And once you get to doing something so on its face, wrongful judges and juries are quickly to say, quick to say, there, there must be some ulterior motive here. And we think it's based on race. So I would say that's a horrible charge to make against whoever the defense was. The college, I assume number two, job def defense descriptions are normally, as, you know, pretty good defense. If a person doesn't meet the requirements, the job description, that's normally a non-discriminatory reason to take action. So this case involves altering of job descriptions under suspicious circumstances, which in themselves create an image of unfairness and likely discrimination. So if I was the defense, I'd be very worried about that case, but the defense is gonna be maybe they often change and update job descriptions and this had nothing to do with the race of the people involved. That would be my response. Another

Robyn Turnham (38:55):
Person

James W. Wimberly (38:55):
Has one. Okay. Next question, please.

Speaker 4 (38:58):
Hi, can you hear me?

James W. Wimberly (38:59):
I can.

Speaker 4 (39:00):
Okay, great. Thank you so much. It was very, very informative. I just wanted to know if this recording would be shared with the participants today,

James W. Wimberly (39:08):
If it would be shared with who? Participants?

Speaker 4 (39:11):
The participants, anybody who joined the webinar today?

James W. Wimberly (39:13):
Oh yeah, you can go online and see it. Yeah,

Speaker 4 (39:16):
You

Robyn Turnham (39:16):
Go our website www.whilaw.com and they, they put up all our webinars that we've ever had on there, so you can watch any of 'em for free. Okay,

Speaker 4 (39:29):
Perfect. Thank you so much.

James W. Wimberly (39:32):
Well, I like the subject. I think it's an important subject. I've been practicing this area a long time, and one of the reasons I do is because I'm, I find it interesting and stimulating, just like all these different theories of discrimination and how they've evolved. Thank you for attending. Have a good weekend.