Class Claims: From Intentional Discrimination to Disparate Impact

• Pages: 59-94
• Author: George Rutherglen

59

Chapter 4

CLASS CLAIMS: FROM

INTENTIONAL DISCRIMINATION

TO DISPARATE IMPACT

Class claims of employment discrimination offer a variety of

contrasts with individual claims: the burdens of proof are heavier

and therefore more significant; the reliance on statistics and other

forms of expert evidence is greater; and the competition between

different conceptions of equality is more open and explicit.

Procedural structure also makes a bigger difference in class claims

than in individual claims, a subject that will be taken up later in

Chapters VIII and IX on procedures and remedies. Class claims,

because they immediately affect more employees and applicants,

raise the stakes and attract more public interest. This difference in

scope makes a profound difference in the way in which a violation is

proved, beginning with the use of statistical evidence and extending

to liability for discriminatory effects under the theory of disparate

impact, with important consequences for the controversial issue of

affirmative action.

Strictly speaking, the distinction between class and individual

claims is one of procedure rather than substance, concerning how

individual claims are joined together in a single action instead of how

they are proved under different theories of liability. The standard

procedural form for class claims is either a class action by private

plaintiffs under Federal Rule of Civil Procedure 23 or a pattern-or-

practice action by public officials under statutory authority. Some of

these claims have been litigated as a series of individual claims of

intentional discrimination, following the structure of proof in

McDonnell Douglas Corp. v. Green.

1

And conversely, a few individual

cases have been litigated by presenting statistical evidence of

intentional discrimination or disparate impact.

2

Yet substantive

theories of liability have tended to correspond with the procedural

forms of action: individual theories of liability are mostly to be found

in individual actions, and class-wide theories of li ability, relying

mainly on statistics or the theory of disparate impact, have been

found mostly in class-wide cases.

The move from individual to class claims invites—al though it

does not require—a corresponding move away from the negative

conception of equality that predominates in individual cases. Only

1

411 U.S. 792, 802–05 (1973).

2

E.g., Connecticut v. Teal, 457 U.S. 440, 443 (1982).

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CLASS CLAIMS: FROM INTENTIONAL

DISCRIMINATION TO DISPARATE IMPACT

Ch. 4

the clearest cases alleging class-wide liability depend solely on a

negative conception of equality and only because the employer has

obviously relied on race or some other prohibited characteristic in

formulating or applying a general employment practice. These cases

were common in the years after Title VII first became effective, but

they are now rare. Class claims today focus more on the effects of an

employer’s decision-making process and less on the process itself,

with a correspondingly decreased emphasis on the question whether

the employer considered a prohibited characteristic in violation of the

negative conception of equality. The tendency in group litigation is

toward group theories of liability, with evidence of the effects of

employment practices upon different groups and the justification, if

any, that can be offered for practices with such differential effects.

Evidence at this level of generality appeals, even if only implicitly, to

a remedial conception of equality focused on compensation for past

disadvantages.

Claims brought on behalf of a group of employees come in two

varieties: class claims of intentional discrimination (or disparate

treatment) and class claims of discriminatory effects (or disparate

impact). The difference between these types of claims is significant,

so much so that constitutional law only recognizes claims of disparate

treatment, not disparate impact.

3

Yet these two kinds of claims

resemble one another, especially in the statistical evidence that the

plaintiff must present in order to establish liability. This superficial

similarity reflects a deeper uniformity in the competing conceptions

of equality that animate each of these theories of liability, resulting

in different doctrinal formulations, but of the same fundamental

issues. At a first approximation, class claims of disparate treatment

emphasize the historical perspective and its negative conception of

equality as colorblindness, while class claims of disparate impact

emphasize the remedial perspective and its goal of eliminating the

effects of past discrimination. As the law governing each claim has

become more refined, however, the economic perspective has

assumed greater prominence in both, yielding the same results in

most class-wide cases, regardless of the kind of claim asserted by the

plaintiff.

The movement away from a negative conception of eq uality

starts modestly enough with class-wide claims of disparate

treatment. The ultimate question of fact is the same as in individual

claims of intentional discrimination—whether the employer relied on

a prohibited characteristic—but the method of proof has changed—

to focus on statistical evidence of treatment of an entire group

instead of a single individual. With the theory of disparate impact,

3

Washington v. Davis, 426 U.S. 229, 238–39 (1976).

Ch. 4

CLASS CLAIMS: FROM INTENTIONAL

DISCRIMINATION TO DISPARATE IMPACT

61

the departure from a negative conception of equality becomes a

matter of legal doctrine. It is now codified in the different substantive

requirements for proving a violation of Title VII. A finding of

intentional discrimination no longer is even necessary. The ultimate

questions of fact concern the effect of the disputed employment

practice and the business justification offered in support of it, both

objective facts distinct from the employer’s subjective reasons. This

shift in emphasis, in turn, supports a further shift: to affirmative

action as a means of securing compliance with the law and remedying

the consequences of past discrimination. From the employer’s

perspective, however, adopting an affirmative action plan is an

equally effective means of preventing class-wide claims of all kinds

from arising, whether based on a theory of disparate treatment or a

theory of disparate impact. The group character of these claims and

the statistical evidence used to support them is what becomes

decisive, both in determining the outcome of litigation and in causing

employers to change their business practices.

A. Class Claims of Disparate Treatment

Class claims of disparate treatment occupy an uncertain middle

ground between individual claims of intentional discrimination and

class claims of disparate impact. They take a first step toward

liability for discriminatory effects by changing the focus of litigation

from an individual plaintiff to an entire group, yet they retain the

same negative conception of equality as colorblindness that underlies

individual claims of intentional discrimination. Class claims of

disparate treatment combine statistical evidence of the objective

effects of employment practices with the need to find subjective

intent in considering a prohibited reason such as race. This gap

between objective evidence and subjective findings has led many

courts, following the lead of the Supreme Court, to require proof of

individual instances of intentional discrimination that bring “the

cold numbers convincingly to life.”

4

Usually, however, the courts

qualify this requirement by noting that statistical evidence, if strong

enough, dispenses with the need for anecdotal evidence.

5

Apart from

relying upon such familiar forms of anecdotal evidence, the courts

4

Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977); see also

EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 303–04 (7th Cir. 1991)

(statistical evidence not strong enough in this case to dispense with the need for

individual e vidence); American Fed’n of State, County & Mun. Employees v.

Washington, 770 F.2d 1401, 1407 (9th Cir. 1985) (same); Garcia v. Rush-Presbyterian-

St. Luke’s Med. Ctr., 660 F.2d 1217, 1225 (7th Cir. 1981) (same).

5

Burgis v. New York City Dep’t of Sanitation, 798 F.3d 63, 69 (2d Cir. 2015),

cert. denied, 136 S.Ct. 1202 (2016) (stating that, to show intentional discrimination,

“the statistics must not only be statistically significant in the mathematical sense, but

they must also be of a level that makes other plausible non-discriminatory

explanations very unlikely”).