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109 5 The Law of Disparate Treatment and Impact Distinguishing Disparate Treatment and Disparate Impact Title VII of the 1964 Civil Rights Act makes it illegal for an employer to discriminate against an applicant or an employee “because of” the individual’s race, color, religion, sex, or national origin. There is no mention of intent in the liability section of the statute, but the original remedies section states that a judge may grant relief to a complainant “if the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint” (42 U.S.C. § 2000e-­ 5(g)(1)). While it is not clear from these provisions that the statute requires proof of intent to discriminate rather than intentional conduct, the courts early on required a showing of discriminatory intent in disparate treatment cases. Activists and EEOC lawyers recognized soon after passage of the Act, however, that requiring an intent to discriminate would limit the statute’s usefulness in combating racial inequalities in the workplace (Eskridge 1994). They brought cases alleging that neutral employment policies that have disparate effects on the plaintiffs because of their race were illegal under Title VII. One of those cases was Griggs v. Duke Power Co., which the U.S. Supreme Court decided in 1971. In Griggs, black employees demonstrated that high school diploma and standardized test requirements for transfer to “inside” operating jobs in the defendant’s power plant had a disparate impact on black employees in the company. The Supreme Court unanimously adopted the disparate impact theory of discrimination, and held that the black employees had established a violation of Title VII because the employer could not prove that the test and diploma requirements had a “demonstrable relationship to successful performance of the jobs for which [they were] used” (Griggs v. Duke Power Co. 1971, 431). The Court declared that the “touchstone is business necessity” and assigned the employer with the burden of proving that “any given requirement must have a manifest relationship to the 110 | The Law of Disparate Treatment and Impact employment in question” (ibid., 431–­32). Griggs made it clear that Title VII plaintiffs could prevail using disparate impact theory even absent a showing of discriminatory intent. Disparate impact theory, however, would not apply to all Title VII cases. Only two years after Griggs, the Supreme Court decided McDonnell Douglas Corp. v. Green, where the Court distinguished Griggs and established the test for proving disparate treatment in individual cases through the use of the indirect proof method (McDonnell Douglas Corp. v. Green 1973). Unlike the plaintiff in Griggs, the plaintiff in McDonnell Douglas did not argue that a particular neutral policy created a disparate impact on employees. Rather, he alleged that the employer failed to rehire him because of his race. The McDonnell Douglas proof method permits the plaintiff to prove intentional discrimination through the use of a three-­ step approach, which is described more fully below. Since Griggs and McDonnell Douglas, the Supreme Court and lower courts have emphasized the distinction between the disparate treatment and disparate impact theories of proving discrimination under Title VII. The characteristic that distinguishes disparate treatment from disparate impact is proof of the employer’s intent. Suits brought under Title VII using the disparate treatment theory require a showing of the employer’s discriminatory intent. Those alleging disparate impact claims, which attack an employer’s neutral policy that has an adverse effect on members of the protected classes, do not. The Evolution of Employment Discrimination Law Title VII is an evolving statute. It relies a great deal on the Court’s interpretation . But, when Congress perceives the Court to have overstepped its power, it has intervened and overturned Supreme Court cases by amending the statute. During the fifty years since the passage of the 1964 Civil Rights Act, Congress has amended the statute a number of times. The first major amendment added public employers as possible defendants in 1972. Next, the Pregnancy Discrimination Act of 1978 (PDA) amended the Act to overturn a conservative Supreme Court case that held that employers who discriminated on the basis of pregnancy did not discriminate because of sex (General Electric Co. v. Gilbert 1976). The PDA amended the definition of discrimination “because of sex” to The Law of Disparate Treatment and Impact | 111 include pregnancy and pregnancy-­ related conditions, thereby making it illegal to discriminate on the basis of pregnancy. Perhaps the most significant amendments, however, appeared in...


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