Title VII prohibits two forms of discrimination: disparate treatment and disparate impact. Employment practices result in disparate treatment (or intentional discrimination) if they are based in any way on a prohibited factor, such as race.
The elements of the theory of disparate treatment have been codified by the Civil Rights Act of 1991: "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."
These elements can be broken down into three parts: (1) an employment practice (2) motivated at least in part by (3) a prohibited factor.
Claims of disparate treatment can, in turn, be subdivided into individual claims and class claims, which differ not in what is proved, but in how it is proved. Both types of claims require proof that the employer was motivated by a prohibited factor. Individual claims tend to emphasize anecdotal evidence concerning the treatment of an individual plaintiff, however, while class claims usually rely on statistical evidence of treatment of an entire class. Even so, this generalization admits of exceptions, which are discussed more fully in the sections that follow.
Claims of disparate impact do not require proof of motivation, but only proof of neutral practices with discriminatory effects. Like the definition of disparate treatment, the elements of the theory of disparate impact were codified by the Civil Rights Act of 1991.
These elements can be broken down into three parts. First, the plaintiff must prove that an employment practice "causes a disparate impact on the basis of race, color, religion, sex, or national origin."
If the plaintiff carries this initial burden, then the burden of proof, both of production and persuasion, shifts to the defendant to show that the disputed practice is "job related for the position in question and consistent with business necessity." If the defendant carries this burden, then the burden of proof shifts back to the plaintiff to prove that "an alternative employment practice"...