Disparate treatment

Title VII, Griggs, and the Civil Rights Act of 1991

Under Title VII, a disparate-treatment plaintiff must establish "that the defendant had a discriminatory intent or motive" for taking a job-related action. This doctrine was read into the act in Griggs v. Duke Power Co., which interpreted the Act to prohibit, in some cases, employers' facially neutral practices that, in fact, are "discriminatory in operation." The Griggs Court stated that the "touchstone" for disparate-impact liability is the lack of "business necessity": "If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited." If an employer met its burden by showing that its practice was job-related, the plaintiff was required to show a legitimate alternative that would have resulted in less discrimination.

Twenty years after Griggs, the Civil Rights Act of 1991 was enacted. The Act included a provision codifying the prohibition on disparate-impact discrimination. Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses "a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin." An employer may defend against liability by demonstrating that the practice is "job related for the position in question and consistent with business necessity." Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs.

Direct method

Under the direct method, a plaintiff tries to show that his membership in the protected class was a motivating factor in the adverse job action.

1. He may offer direct evidence, e.g. that the defendant admitted that it was motivated by discriminatory intent or that it acted pursuant to a policy that is discriminatory on its face. Direct evidence of discrimination is rarely available, given that most employers do not openly admit that they discriminate. Facially discriminatory policies are only permissible if gender, national origin, or religion is a bona fide occupational qualification for the position in question. Race or color may never be a bona fide occupational qualification.
2. He may offer any of three types of circumstantial evidence:

Indirect Method - Burden-Shifting

In the majority of cases, the plaintiff lacks direct evidence of discrimination and must prove discriminatory intent indirectly by inference. The Supreme Court analyzes these cases using the McDonnell Douglas burden-shifting formula. The analysis is as follows:

(1) The plaintiff must establish a prima facie case of discrimination. (2) The employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions. (3) To prevail, the plaintiff must prove that the employer's stated reason is a pretext to hide discrimination. In the Seventh Circuit, courts generally analyze disparate treatment cases using this method, though attorneys may also use the direct method described above. Instructing the jury: If the case goes to a jury, the elaborate McDonnell Douglas formula should not be part of the jury instructions. The ultimate question for the jury is whether the defendant took the actions at issue because of the plaintiff's membership in a protected class.

Mixed Motives

The plaintiff in a disparate treatment case need only prove that membership in a protected class was a motivating factor in the employment decision, not that it was the sole factor. One's membership in a protected class will be considered a motivating factor when it contributes to the employment decision. If the employer proves that it had another reason for its actions and it would have made the same decision without the discriminatory factor, it may avoid liability for monetary damages, reinstatement or promotion. The court may still grant the plaintiff declaratory relief, injunctive relief, and attorneys' fees and costs.

The Seventh Circuit has held that in a mixed motives retaliation case, the plaintiff is not entitled to declaratory relief, injunctive relief, or attorneys fees because retaliation is not listed in the mixed motives provision of the 1991 Civil Rights Act.

After-Acquired Evidence

If an employer takes an adverse employment action against an employee for a discriminatory reason and later discovers a legitimate reason that it can prove would have led it to take the same action, the employer is still liable for the discrimination, but the relief that the employee can recover may be limited. McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). In general, the employee is not entitled to reinstatement or front pay, and the back pay liability period is limited to the time between the occurrence of the discriminatory act and the date the misconduct justifying the job action is discovered. McKennon, 513 U.S. at 361-62.

Pattern or Practice Discrimination

In class actions or other cases alleging a widespread practice of intentional discrimination, plaintiffs may establish a prima facie case using statistical evidence instead of comparative evidence pertaining to each class member. Plaintiffs often combine the statistical evidence with anecdotal or other evidence of discriminatory treatment. The employer can rebut the prima facie case by introducing alternative statistics or by demonstrating that plaintiff's proof is either inaccurate or insignificant. The plaintiff then bears the burden of proving that the employer's information is biased, inaccurate, or otherwise unworthy of credence.

Contrast to disparate impact

A violation of Title VII can be shown in two separate and distinct ways. The alternative to a "disparate treatment" theory is a "disparate impact" theory. A disparate impact violation is when an employer is shown to have used a specific employment practice, neutral on its face but that caused a substantial adverse impact to a protected group, and cannot be justified as serving a legitimate business goal for the employer. No proof of intentional discrimination is necessary.

The Fair Housing Act

The disparate treatment theory has application also in the housing context under Title VIII of the Civil Rights Act of 1968, also known as The Fair Housing Act. The Fair Housing Act prohibits disparate treatment in the housing market due to race, color, religion, national origin, sex, family status, and disability. The U.S. Department of Housing and Urban Development's Office of Fair Housing and Equal Opportunity enforces this law. It receives and investigates any discrimination complaints that are filed.