A Path through the Maze: Disparate Impact and Disparate Treatment Under Title VII of the Civil Rights Act of 1964 After Beazer and Burdine
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A Path through the Maze: Disparate Impact and Disparate Treatment Under Title VII of the Civil Rights Act of 1964 After Beazer and Burdine
Hannah Arterian Furnish 0
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Part of the Civil Rights and Discrimination Commons Recommended Citation Hannah A. Furnish, A Path through the Maze: Disparate Impact and Disparate Treatment Under Title VII of the Civil Rights Act of 1964 After Beazer and Burdine, 23 B.C.L. Rev. 419 (1982), http://lawdigitalcommons.bc.edu/bclr/vol23/iss2/3
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HANNAH ARTERIAN FURNISH *
I. INTRODUCTION
The Supreme Court has recognized two distinct types of prima facie
violations of Title VII of the Civil Rights Act of 1964:' disparate impact' and
disparate treatment. 3 In a disparate impact case the plaintiff attempts to
demonstrate that a neutral rule, fair on its face and objectively applied, has a
significantly greater effect on persons protected under Title VII than on the
majority group.' In a disparate treatment case, the plaintiff attempts to
demonstrate that he is the victim of intentional, but covert, discrimination. 5
Theoretically, in a disparate impact case the intent of the defendant is
irrelevant; in a disparate treatment case it is critical. 6
Since the Supreme Court's early recognition of the two types of Title VII
violations, the Court has failed to clarify several major elements of each case.
Most noticeably lacking are articulations of: (
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) the relationship between the
evidentiary burdens and orders of proof imposed on Title VII litigants, and (2)
the relationship between the substantive defenses in each case. The latter
problem is compounded by the Court's failure to describe adequately the defenses in
either case. Critics assert that the Supreme Court's analysis of disparate impact
and disparate treatment cases violates the principles underlying Title VII.' In
their view, the Court is revolutionizing Title VII on an ad hoc basis without
attempting to explicate a theory to support its decisions. 8 This article suggests
that no such revolution is occurring, but rather that the Court's opinions
represent an evolution toward an explicable merger of disparate impact and
disparate treatment cases.
This article, through an analysis of the relationship between disparate
impact and disparate treatment cases, explores the theory that recent Supreme
Court decisions foreshadow an ultimate merger of the two types of cases. First,
the article examines the development of similar orders of proof in both cases.
Next, the substantive defenses to Title VII claims are explored. The recent
Supreme Court cases of New York City Transit Authority v. Beazer, 9 and Texas
Department of Community Affairs v. Burdine" are analyzed in light of their support
for the proposition that the defendant's burden in disparate impact cases is
diminishing" and thereby merging with that of the disparate treatment
defendant. The Court's tendency to blur distinctions between the two defenses is also
examined. Finally, while presenting a viable analytic framework which
distinguishes the two types of cases, the article suggests a theory and structure
for the eventual merger of disparate impact and disparate treatment cases.
II. DISPARATE TREATMENT AND DISPARATE IMPACT — THEIR
RELATIONSHIP IN SUPREME COURT OPINIONS
There are relatively few Supreme Court decisions bearing directly on the
orders of proof and the substance of defenses in disparate impact and disparate
treatment cases." In order to simplify the analysis and resolution of the
problems raised by these decisions this article will first analyze the relationship
between the orders of proof in disparate treatment and disparate impact cases."
The more challenging problem of the relationship of the defenses will then be
analyzed.' 4 This attempt to separate the relationship issues into distinct
compartments is somewhat artificial and is not adhered to rigidly, but is necessary
for purposes of clarity.
A. Relationship Between the Orders of Proof in Disparate
Treatment and Disparate Impact cases
The Supreme Court gave its judicial blessing to the disparate impact
method of proving a violation of Title VII in its seminal Title VII opinion,
Griggs v. Duke Power Company.' 5 In Griggs the plaintiff showed that the neutral
policies of the employer had a disproportionate impact on blacks by eliminating
significantly more blacks than whites from jobs.' 6 In the Court's view, this
demonstration of disproportionate impact sufficed to require the defendant to
show that the practice was related to job perforrnanee. 17 In analyzing the
defendant's case, the Court sought to determine (...truncated)