Class Claims: From Intentional Discrimination to Disparate Impact

• Pages: 61-98
• Author: George A. Rutherglen

61

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 theref ore more significant; the reliance on statistics and other

forms of ex pert 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 claim s,

because they immediately affect more employees and applicants,

raise the stake s and attra ct more p ublic interest. This difference in

scope makes a profound difference in the w ay in which a violation is

proved, beginning with the use of statistical evidence and extending

to lia bility fo r discrim inatory effects under the the ory of d isparate

impact, wi th impo rtant co nsequences for the co ntroversial 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 h ave bee n litigate d by presenting statistical e vidence 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 liability, relying

mainly on statistics or the th eory of disparate impact, have been

found mostly in class-wide cases.

The mo ve from individual to c lass claims invites—although it

does not require—a corresponding move away from the negative

conception of equality that pre dominates in ind ividual cases. O nly

1

411 U.S. 792, 802–05 (1973).

2

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

62

CLASS CLAIMS: FROM INTENTIONAL

DISCRIMINATION TO DISPARATE IMPACT

Ch. 4

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

negative concep tion of equality and o nly 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 ef fective, but

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

employer’s decision-making proce ss 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 o f liability, with evidence of the effects of

employment practices upon different g roups and the justification, if

any, that can be off ered 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). Both types of claims have fallen into disfavor after Students

for Fair Admissions.

3

Group evidence of discrimination in either form

can be assimilated, more or less readily, with benefits denied to one

racial group or another. They seem to endorse an indirect form of

affirmative action because preferences for the disfavored group could

dissipate any inference of violation of the statute.

The diff erence between these ty pes of claims is significant, so

much so that constitutional law only recognizes claims of disparate

treatment, not disparate impact.

4

Yet these two kinds of claims

resemble one anothe r, especially in the statistical evidence that the

plaintiff must present in o rder to establish liability. This superficial

similarity reflects a de eper uniformity in the competing conceptions

of equality that ani mate each of these theories of liability, resulting

in different doctrinal formulations, but of the same fundamental

issues. At a first appro ximation, class claims of dis parate treatment

emphasize the historical perspective and its negative conception of

equality as excluding co nsideration of race, whil e class claims of

disparate impact emphasize the remedial pe rspective and its goal of

eliminating the effe cts of past discrimination. As the law governing

each claim has become more re fined, 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.

3

600 U.S. 181 (2023).

4

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

Ch. 4

CLASS CLAIMS: FROM INTENTIONAL

DISCRIMINATION TO DISPARATE IMPACT

63

The movement away from a negative conception of equality

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 ind ividual. The method of proof formally differs

from individual claims, since the fo cus turns to the effects of

employment practices on an entire group rather than on a single

individual or a few. Yet as the focus has changed, the gap between

circumstantial evidence and a finding of intentional discrimina tion

has grown. A ruling for the plaintiff on claims of disparate impact

has the same legal consequences has a similar ruling on disp arate

impact: a finding that the defendant has violated Title VII.

With the theory of disparate impact, however, 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 o bjective 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 e vidence 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 ch anging the focus of l itigation

from an individual plaintiff to an e ntire group, yet they retain the

same negative conception of equality as colorblindness that underlies

individual claims of inte ntional discrimination. Class claim s 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