Affirmative Action - Disparate Treatment

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, sex, creed, religion, or national origin. Under a disparate treatment theory, which the Supreme Court has described as the most easily understood type of discrimination, an employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical. Thus, preferential or differential treatment of individuals because of their race runs afoul of the statutory prohibition.

Four justifications have been posited for the disparate treatment theory: (1) race and gender classifications are a priori wrong; (2) race classifications may be founded on prejudice or hostility; (3) race and gender, when used as proxies for other characteristics deemed to be legitimate considerations, are inaccurate generalizations cast as irrebuttable presumptions; and (4) such classifications, even if used as accurate proxies, generate psychological harm and stigmatize disfavored persons.

Race, gender, or other protected status may not be used as employment criteria which directly cause an employment decision. Thus, disparate treatment theory is concerned with a narrow aspect of the process of employer decision making, rather than the results reached through that process.

McDonnell Douglas Corporation v. Green is the seminal case articulating and applying the disparate treatment theory under Title VII. Addressing the order and allocation of proof in an action alleging unlawful racial discrimination in hiring, a unanimous Supreme Court set forth the now familiar rules applicable to cases where there is no direct evidence of discrimination:

The complainant must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he was rejected, and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

If that initial burden was met by the plaintiff, the burden would then shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Where that burden is met by the employer, the plaintiff must then show that the employer's articulated reason was a pretext for discrimination. At all times, the burden of persuasion remains with the plaintiff.

As can be seen, disparate treatment theory focuses on the employer's treatment of individuals, and requires that the process used in making employment decisions must be one of like treatment which is not influenced by race or gender. Suppose, for example, that two individuals (one black and one white, or one male and one female) apply for the same position with an employer. Under disparate treatment theory, the employer is required to treat both individuals equally (i.e., may not treat them in a dissimilar fashion because of their race), must make available the same opportunity for employment to both individuals; and must follow the same process in considering both individuals for possible employment. Where any decision reached by the employer is based on grounds or factors independent of those grounds proscribed by Title VII, the statute is not violated and the employer has not engaged in unlawful disparate treatment.