A Path through the Maze: Disparate Impact and Disparate Treatment Under Title VII of the Civil Rights Act of 1964 After Beazer and Burdine

Boston College Law Review, Dec 1982

By Hannah Arterian Furnish, Published on 03/01/82

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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

IVA 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 0 Thi s Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact 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 - Article 3 Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr 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: ( 1 ) 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)


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Hannah Arterian 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, Boston College Law Review, 1982, Volume 23, Issue 2,