Also known as: disparate treatment claims · disparate treatment
Written by attorneys — see sources below.
A claim alleging that an actor intentionally treated an individual or group differently because of a protected characteristic.
Several states sued the federal government after Congress imposed preclearance rules only on jurisdictions flagged decades earlier for voting issues. The states argued that the selective coverage formula amounted to intentional differential treatment without current justification. A court agreed that the scheme lacked the required extraordinary basis under equal sovereignty principles.
Diana Delgado, an Asian-American applicant, challenged the university's use of race in holistic review after she was denied admission despite strong credentials. She claimed the policy intentionally disadvantaged applicants from her racial group. The court applied strict scrutiny to evaluate whether the university's consideration of race met constitutional standards.
Abigail Fisher, a Caucasian applicant, was denied admission to the University of Texas at Austin's 2008 entering class after submitting one of 29,501 applications, of which 12,843 were admitted and 6,715 enrolled. Fisher sued the University and school officials in the United States District Court for the Western District of Texas, alleging that the University's consideration of race in admissions violated the Equal Protection Clause. The parties cross-moved for summary judgment. The District Court granted summary judgment to the University. The United States Court of Appeals for the Fifth Circuit affirmed. Prior to 1997 the University considered an applicant's Academic Index reflecting test scores and high school performance along with race. After the Fifth Circuit's 1996 decision in Hopwood v. Texas, the University stopped considering race and substituted a Personal Achievement Index measuring leadership, work experience, awards, extracurricular activities, community service, and socioeconomic factors. The Texas Legislature enacted the Top Ten Percent Law granting automatic admission to the top 10 percent of students at each qualifying high school. Following this Court's decisions in Grutter v. Bollinger and Gratz v. Bollinger, the University adopted its current program in 2004. It included a student's self-identified race from five predefined categories as a component of the Personal Achievement Index score. The Proposal relied on a study of undergraduate classes with five to twenty-four students showing limited minority enrollment and on anecdotal student reports, concluding that the University lacked a critical mass of minority students. Over the dissent of seven judges the Court of Appeals denied rehearing en banc. Petitioner sought a writ of certiorari, which was granted.
View caseDarius Dixon and other firefighters sued after the city refused to certify promotion exam results that would have favored white candidates. They alleged the city's decision constituted intentional discrimination against them on the basis of race. The court held that the city lacked a strong basis in evidence for fearing disparate impact liability.
In 2003, the City of New Haven hired Industrial/Organizational Solutions, Inc. to develop and administer promotional examinations for lieutenant and captain positions in its fire department pursuant to a collective-bargaining agreement that required a written component weighted at 60 percent and an oral component weighted at 40 percent. IOS performed job analyses that deliberately oversampled minority firefighters to avoid unintentional bias favoring white candidates. The examinations were administered in November and December 2003. Seventy-seven candidates completed the lieutenant examination. Forty-one candidates completed the captain examination. The results showed pass rates of 58.1 percent for white candidates, 31.6 percent for Hispanic candidates, and 31.6 percent for black candidates on the lieutenant exam. Pass rates on the captain exam were 64.3 percent for white candidates, 37.5 percent for Hispanic candidates, and 0 percent for black candidates. Under the rule of three, the top ten candidates eligible for lieutenant promotion were all white. The top nine candidates eligible for captain promotion were seven whites and two Hispanics. After the results were released, the City held five public hearings before its Civil Service Board between January and March 2004. At those hearings, IOS vice president Chad Legel described the test-development process. Testing consultant Christopher Hornick criticized the 60/40 weighting and recommended assessment centers. Retired fire captain Vincent Lewis reviewed the content. Boston College professor Janet Helms discussed possible cultural bias in the job-analysis questionnaires. City officials including corporation counsel Thomas Ude and human-resources director Tina Burgett urged non-certification on the ground that the statistical disparity would expose the City to liability. Several candidates who had passed the exams urged certification. The Board deadlocked 2-2 and declined to certify the results. Seventeen white firefighters and one Hispanic firefighter who had passed the examinations sued the City, Mayor John DeStefano, and other officials in the United States District Court for the District of Connecticut, alleging violations of Title VII and the Equal Protection Clause. The District Court granted summary judgment for the defendants. The Court of Appeals for the Second Circuit affirmed in a per curiam opinion. The Supreme Court granted certiorari.
View caseDevon Drake, a gay employee at Dynamic Solutions, was fired shortly after his supervisor learned of his sexual orientation. He filed suit claiming the termination was motivated by his sex. The court ruled that discrimination on the basis of sexual orientation necessarily involves intentional treatment based on sex.
The three cases consolidated before the Supreme Court arose when employers fired long-time employees shortly after the employees revealed their homosexual or transgender status. Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate whose leadership earned the county national awards. After a decade with the county, Bostock began participating in a gay recreational softball league. Influential community members then made disparaging comments about his sexual orientation, and he was fired for conduct unbecoming a county employee. Donald Zarda worked as a skydiving instructor at Altitude Express in New York for several seasons. After mentioning that he was gay, he was fired days later. Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Michigan, presenting as male when hired. After two years she began treatment for gender dysphoria and wrote a letter stating she planned to live and work full-time as a woman. The funeral home fired her before she left for vacation. Each employee sued under Title VII of the Civil Rights Act of 1964 alleging unlawful discrimination on the basis of sex. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and dismissed Bostock's suit as a matter of law. The Second Circuit allowed Zarda's claim to proceed on the ground that sexual orientation discrimination violates Title VII. The Sixth Circuit reached the same conclusion in Stephens's case regarding transgender status. Both Zarda and Stephens passed away during the proceedings, but their estates continued to press the claims. The Supreme Court granted certiorari to resolve the disagreement among the courts of appeals over the scope of Title VII's protections for homosexual and transgender persons.
View caseDover Bank denied a permit for a group home serving individuals with intellectual disabilities while approving similar uses for other applicants. The home operator sued, alleging the denial reflected intentional discrimination on the basis of disability. The court applied rational basis review but found the city's justifications insufficient to sustain the classification.
In July 1980, respondent Jan Hannah purchased a building at 201 Featherston Street in Cleburne, Texas. Hannah intended to lease the property to Cleburne Living Center, Inc. (CLC) for use as a group home. The home would house thirteen mentally retarded men and women under constant staff supervision. The building contained four bedrooms and two baths, and CLC planned to add a half bath while complying with all applicable state and federal regulations for an Intermediate Care Facility for the Mentally Retarded. The site lay in an R-3 Apartment House District. The city's zoning ordinance permitted apartment houses, boarding houses, hospitals, and nursing homes in that district without special permission. However, the ordinance required a special use permit, renewable annually after a public hearing, for hospitals for the insane or feeble-minded. The city classified the proposed group home as a hospital for the feeble-minded and informed CLC that a permit was required. After a public hearing, the City Council voted three to one to deny the application. CLC and its prospective residents filed suit in federal district court against the city and its officials. They alleged that the ordinance and its application discriminated against the mentally retarded in violation of the Equal Protection Clause. The district court upheld the ordinance and the denial. It found that the council's decision was motivated by the residents' mental retardation yet rationally related to legitimate interests such as neighborhood safety and property values. The Court of Appeals for the Fifth Circuit reversed, holding that mental retardation is a quasi-suspect class and that the ordinance was invalid both facially and as applied. The Supreme Court granted certiorari to review the equal protection issues raised by the zoning ordinance and its application to the proposed group home.
View caseDeborah Dunn sought to represent a nationwide class of female employees at Drake Logistics who alleged they were passed over for promotions. She claimed the company's practices reflected a pattern of intentional sex discrimination. The court denied certification because the plaintiffs could not show a common question of law or fact capable of classwide resolution.
In 2001, three current or former female employees of Wal-Mart Stores, Inc.—Betty Dukes, Christine Kwapnoski, and Edith Arana—filed a lawsuit in the Northern District of California alleging that the company had discriminated against them and other women in pay and promotions. Wal-Mart, the nation’s largest private employer with approximately 3,400 stores across the country and more than one million employees, delegated pay and promotion decisions to local store managers who exercised broad discretion in a largely subjective manner. The plaintiffs claimed that this discretion was exercised disproportionately in favor of men, resulting in lower pay and fewer promotions for female employees. They sought to represent a class of approximately 1.5 million current and former female employees who had worked at any Wal-Mart domestic retail store since December 26, 1998. To support their motion for class certification, the plaintiffs presented statistical evidence from experts Dr. Richard Drogin and Dr. Marc Bendick showing pay and promotion disparities between men and women, anecdotal evidence consisting of about 120 affidavits from female employees describing discriminatory experiences at only 235 of the company's 3,400 stores, and the testimony of sociologist Dr. William Bielby who analyzed Wal-Mart’s corporate culture. Betty Dukes began working at a Pittsburg, California store in 1994 as a cashier and was later promoted to customer service manager before being demoted; she alleged retaliation and that male greeters were paid more. Christine Kwapnoski worked at Sam’s Club stores and claimed a male manager yelled at female employees and told her to “doll up.” Edith Arana worked at a Duarte, California store from 1995 to 2001. She was denied opportunities for management training despite repeated requests. The District Court certified the class under Federal Rule of Civil Procedure 23(b)(2), finding that the plaintiffs had presented significant evidence of a company-wide pattern of discrimination. The Court of Appeals for the Ninth Circuit, sitting en banc, substantially affirmed the certification order. The Supreme Court granted certiorari to review whether the class certification was consistent with Rule 23(a) and (b)(2).
View caseA plaintiff must show that the defendant acted with discriminatory intent based on a protected characteristic. Direct evidence of intent or circumstantial evidence creating an inference of discrimination can satisfy this requirement.
A disparate treatment claim requires proof of intentional discrimination, while a disparate impact claim challenges facially neutral practices that produce unequal results without regard to intent.
Yes, once a plaintiff establishes a prima facie case, the employer may prevail by proving the same decision would have been made for legitimate, nondiscriminatory reasons.
…is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment? In most cases the answer to these questions will tell us whether the statute has a "rational basis." The answers will result in the virtually automatic invalidation of racial…