Also known as: individual disparate treatment · disparate treatment theory · individual disparate treatment claim · disparate treatment
Written by attorneys — see sources below.
A theory of liability under Title VII that requires proof an employer intentionally discriminated against a particular employee because of a protected characteristic. The plaintiff must establish that the protected trait was a motivating factor in the adverse employment decision through direct or circumstantial evidence.
Insight Consulting, a firm operating in multiple states, challenged a federal statute that imposed extra compliance burdens only on employers in states flagged by decades-old data. The court examined whether the selective application lacked current justification tied to present conditions. The claim failed because the formula did not reflect ongoing violations warranting disparate regulatory treatment.
Israel Irving was terminated shortly after his supervisor learned he was gay. He presented evidence that similarly situated straight employees received warnings rather than discharge for comparable conduct. The court applied the but-for causation standard to determine whether sexual orientation motivated the decision.
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 caseIdris Ives and other firefighters who passed a promotional exam sued after the city discarded the results to avoid a racial imbalance. They showed the city acted because of the racial composition of the successful candidates rather than any flaw in the test itself. The court required evidence that race was the reason for the adverse action.
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 caseIra Irving, an applicant denied admission, alleged that university officials evaluated his file differently because of his race. He introduced internal documents showing that race was considered as a plus factor only for certain applicants. The court assessed whether the individualized consideration satisfied strict scrutiny requirements.
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 caseIdina Iverson, a store manager, alleged that her pay and promotion opportunities were lower than those of male managers because of sex. She offered statistical evidence of a company-wide pattern of decisions by individual supervisors. The court evaluated whether common proof could establish intentional discrimination across thousands of stores.
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 caseIain Irons reported repeated unwelcome advances by his shift supervisor and was later demoted. He introduced evidence that the supervisor had authority to recommend tangible employment actions. The court determined whether the employer could be held liable for the supervisor's conduct under agency principles.
Maetta Vance, an African-American woman, began working for Ball State University in 1989 as a substitute server in the University Banquet and Catering division of Dining Services. In 1991, the university promoted her to a part-time catering assistant position. In 2007, she was selected for a full-time catering assistant role. During the time in question, Saundra Davis, a white woman, worked as a catering specialist in the same division. The parties agree that Davis lacked authority to hire, fire, demote, promote, transfer, or discipline Vance. In late 2005 and early 2006, Vance filed internal complaints with Ball State and charges with the Equal Employment Opportunity Commission alleging racial harassment by Davis. She described incidents in which Davis glared at her, slammed pots and pans, intimidated her, blocked her on an elevator while smiling, and gave her weird looks. Vance filed suit in 2006 in the United States District Court for the Southern District of Indiana. She alleged that Davis was her supervisor and that Ball State was liable for a racially hostile work environment under Title VII. Both parties moved for summary judgment. The District Court granted summary judgment to Ball State on September 10, 2008. It concluded that Davis was not a supervisor because she could not take tangible employment actions against Vance and that Ball State was not negligent. The Seventh Circuit affirmed in 646 F. 3d 461. It applied its precedent that supervisor status requires the power to hire, fire, demote, promote, transfer, or discipline. The Supreme Court granted certiorari to resolve the conflict among the circuits over the definition of supervisor.
View caseA plaintiff must show that a protected characteristic was a motivating factor in an adverse employment decision. Direct evidence or circumstantial evidence creating an inference of intentional discrimination satisfies this requirement.
Individual disparate treatment requires proof of intentional discrimination against a specific person. Disparate impact challenges neutral practices that produce statistical disparities without regard to motive.
Statistical evidence may support an inference of discrimination but typically must be paired with evidence particular to the plaintiff's situation. Courts require more than aggregate numbers to prove intent in an individual case.
…District has not met its burden of proving these marginal changes . . . outweigh the cost of subjecting hundreds of students to disparate treatment based solely upon the color of their skin.” 377 F. 3d, at 984–985 (footnote omitted). Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the…