Theories of Discrimination in the Law

The theories of discrimination are important because they allow courts to evaluate discrimination in a legal context.  To be able to measure the existence and extent of discrimination it is necessary to have a theory (concept, or model) of how such discrimination might occur and what its effects might be.  In a legal sense, discrimination can be broken down into either disparate treatment or disparate impact.[1] Looking through legal treatises and the Internet it is difficult to find good working definitions of the theories of discrimination. No matter if the context is employment, racial profiling, or in death penalty proceedings these theories can be applied and help to understand how a claim of discrimination can be made.

i. Disparate Treatment

Disparate treatment is intentional treatment[2] that occurs when an unlawful action is the motivating factor.[3]  The Supreme Court has “consistently used conventional disparate treatment theory, in which proof of intent to discriminate is required, to review. . . decisions that were based on the exercise of personal judgment or the application of inherently subjective criteria.”[4] A simplified way to describe disparate treatment is to equate it with intentional treatment. There is a little more to it, but hopefully it will be flushed out.

First, intentional discrimination needs to be defined.[5]  Intentional discrimination is one of two elements needed to prove disparate impact.[6]  The definition of intent is pivotal.  However, proving intent “is a sensitive inquiry,” especially when direct evidence of discrimination is not available.[7]  A determination of whether there is a disproportionate impact[8] of the treatment can be a good starting point in the analysis.[9] However, Court has not established a fixed procedure for analyzing or proving intent.[10]

To prove disparate treatment three types of evidence can be used: comparative, statistical, and direct evidence of motive.[11]

Comparative evidence examines similarly situated individuals of different race, sex, or national origin accorded differences in treatment in the death penalty context.[12] “Similarly situated [individuals] must be directly comparable to the plaintiff in all material respects, but they need not be identical in every conceivable way.”[13]  Ultimately, it is the fact finder who determines if the comparators are sufficiently similarly situated.[14]

When using comparative evidence in a disparate treatment context, using the correct comparators are essential in establishing that individuals or class members are similarly situated.  Almost by definition, one sub-set of discrimination is: the practice of unfairly treating a person or group differently.[15]  The problem courts deal with is how close a match does a comparator have to be.

There is some leeway when selecting comparators.  It does not have to be an exact match, but “[c]omparators need only be similar enough to enable a meaningful comparison.”[16]  No two situations are exactly the same, and only in theory will a comparator have an exact match.  “Demanding nearly identical comparators can transform this evidentiary ‘boost’ into an insurmountable hurdle.” [17]

However, if comparators are not close enough for a meaningful comparison then they are not useful as an evidentiary tool.  “[T]he comparators must be similar enough that differences in their treatment cannot be explained by other variables, such as distinctions in their roles or performance histories.”[18]

Statistical evidence can be relevant in proving an individual case of disparate treatment because it is evidence of the presence of a discriminatory motive, but does not prove causation.[19]  While statistical data can evidence a discriminatory motive, [20] statistics alone are insufficient to prove disparate treatment.[21]

Either direct or indirect evidence can be used to help establish intent.[22]

Direct evidence of motive is any statement by an official that indicates a bias against members of a particular group.[23] “Direct evidence of discrimination is evidence which, if believed, would prove the existence of a fact [in issue] without inference or presumption . . . . [O]nly the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [race]. . . constitute direct evidence of discrimination.”[24]

Indirect or circumstantial evidence is extremely useful in vague or unclear issues, for instance when an issue turns on an “actor’s motive or intent.”[25] “A discrimination suit (unlike, for instance, an action for negligence or breach of contract) puts the plaintiff in the difficult position of having to prove the state of mind of the person making the [sentencing] decision.”[26]  To prove the motive or intent, circumstantial evidence can be linked together as the basis of an argument.[27]

If circumstantial evidence is properly assembled it can be even more persuasive than direct evidence.[28] Some courts do not even draw a distinction between the “probative value” of direct and circumstantial evidence.[29]  “‘The reason for treating circumstantial and direct evidence alike,’ the Supreme Court has explained, ‘is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’”[30]

Circumstantial evidence is accepted in both the criminal and civil contexts. The Supreme Court has “never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required.”[31]

ii. Disparate Impact

The disparate impact theory of analyzing discrimination was a construct advocated by the EEOC first in 1966, without judicial or legislative backing.[32]  The agency believed that discrimination was not only intentional acts of overt discrimination against individuals, but it also included facially neutral polices that have an adverse impact. The theory gained traction and later was accepted judicially as a permissible way to analyze discrimination, five years later in Griggs v. Duke Power, Co.[33]

Disparate impact focuses on the effect of an action or policy.  The party claiming a disparate impact needs to establish that a facially neutral act or policy has an adverse effect in significant numbers. [34]  In the death penalty context a disparate impact analysis would work by removing barriers in the death penalty that are not necessarily intended or designed to discriminate – “practices that are fair in form, but [arbitrary] in operation.”[35] Unlike disparate treatment, proof of discriminatory motive is not necessary in a disparate impact analysis; the outcome is the crux of the argument.[36]

In a disparate treatment analysis the policy law or statute is facially neutral.  There is no intent to evaluate.  Thus, disparate impact analyzes the probability of a particular outcome, and cannot prove causation because there is not enough information.[37]  Adverse impact can be determined by comparing the percentage of similarly situated applicants who were selected with the percentage of applicants selected from the group with a different selection rate.[38] In a sequence of events, statistics only look at one particular point in time, and are not reflective of the entire sequence.[39] Statistics can only take into account that variable exist and cannot eliminate the possibility that variables outside of the statistical study may have caused the disparity.[40]

The premise of the disparate impact analysis is some “practices, adopted without a deliberately discriminatory motive, and may in operation be functionally equivalent to intentional discrimination.”[41]

a. Washington v. Davis

Disparate impact is not available in every situation as a method to determine discrimination.  In this case Washington v. Davis[42] precludes disparate impact as the sole reason for a claim of discrimination under the Equal Protection Clause.[43]  In the civil context, Congress has provided statutory protections allowing disparate impact analysis in certain situations when an equal protection claim is made.[44]

Two black police officers brought suit against the Commissioner for the District of Columbia, among others, because the promotion policies were racially discriminatory towards blacks.[45] Part of the promotion policy included a facially neutral written test, which excluded a disproportionately high level of black applicants.[46] Plaintiffs claimed that the discriminatory effect of the test violated the Due Process Clause of the Fifth Amendment and also the Equal Protection Clause of the Fourteenth Amendment.[47]  The test, designed by the Civil Service Commission, was used throughout the federal service to test whether applicants could read and write at a high school level.[48]

Even though the Equal Protection Clause prohibits discrimination based on race, there are limitations on how discrimination can be analyzed. “[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional Solely because it has a racially disproportionate impact.”[49]  Thus, in the death penalty context when asserting a claim under the Equal Protection Clause, more than just disparate impact needs to be asserted. “Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.”[50]  The Equal Protection Clause is supplemented by the language of Title VII of the 1964 Civil Rights Act expressly permitting the use of disparate impact claims in employment discrimination contexts.[51] There is no statutory equivalent of Title VII for claims of equal protection in death penalty proceedings allowing for a pure claim of disparate impact.

A facially neutral policy can be applied so as to “invidiously discriminate,” against a race or a class of people, would trigger the Equal Protections Clause.[52] However, it appears that when a facially neutral policy is applied to invidiously discriminate, there is an intent to discriminate which would not make it a pure claim of disparate impact then, but also that of disparate treatment.  Disparate treatment is a claim that can be asserted under the Due Process and Equal Protection Clauses.

Thus, Washington v. Davis precludes a mere showing of disparate impact when a claim of due process or equal protection is made.  Since claims of discrimination typically involve the Due Process Clause or Equal Protection Clause, then more than just disparate impact must be proved.


[1] 15-V Evaluating Employment Decisions, EEOC Compl. Man., at *1 (BNA).

[2] To describe ‘intentional discrimination’ several synonyms are used by the United States Supreme Court: invidious discrimination, discriminatory intent, and discriminatory purpose.  All of these terms used by the Supreme Court of the United States all refer to the state of mind of the actor.  Even though all of these terms will surface throughout this paper, they will reference to the intent.

[3] 15-V Evaluating Employment Decisions, EEOC Compl. Man., at *1 (BNA).

[4] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 988 (1988).

[5] Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 Geo. L.J. 279, 288 (1997).

[6] Disparate treatment is intentional treatment that occurs when an unlawful action is the motivating factor. 15-V Evaluating Employment Decisions, EEOC Compl. Man., at *1 (BNA).

[7] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

[8] Disproportionate impact is not enough to prove a claim of discrimination by itself.  See Disparate Treatment discussion infra.

[9] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

[10] Id. at 265-68.

[11] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *1-8 (BNA).

[12] Id. at 1.

[13] Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012) (internal quotation marks omitted).

[14] Id. at 846.

[15] Suzanne B. Goldberg, Discrimination by Comparison, 120 Yale L.J. 728, 749 (2011).

[16] Coleman v. Donahue, 667 F.3d 835, 848 (7th Cir. 2012).

[17] Id. at 852 (quoting Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008).

[18] Senske v. Sybase, 588 F.3d 501, 510 (7th Cir. 2009); see Morgan v. Selig, 447 F.3d 748, 755 (9th Cir. 2006).

[19] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *5 (BNA); see Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977) (stating “[s]tatistical analyses have served and will continue to serve an important role in cases in which the existence of discrimination is a disputed issue.”) (internal quotation marks omitted).

[20] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *5 (BNA).

[21] Id.

[22] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

[23] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *6 (BNA).

[24] Bass v. Bd. of Cnty. Comm’rs, Orange Cnty., Fla., 256 F.3d 1095, 1105 (11th Cir. 2001) (internal quotation marks omitted); see Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *6 (BNA).

[25] Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. 1991) (stating “circumstantial evidence alone can support a finding of political discrimination”).

[26] Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999).

[27] Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 668 (1989) (stating “a plaintiff is entitled to prove the defendant’s state of mind through circumstantial evidence”).

[28] “Perhaps on average circumstantial evidence requires a longer chain of inferences, but if each link is solid, the evidence may be compelling-may be more compelling than eyewitness testimony, which depends for its accuracy on the accuracy of the eyewitness’s recollection as well as on his honesty.”  Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir. 2006).

[29] Doe v. United Postal Serv., 317 F.3d 339, 343 (D.C. Cir. 2003).

[30] Doe v. United Postal Serv., 317 F.3d 339, 343 (D.C. Cir. 2003) (quoting Desert Palace Inc. v. Costa, 539 U.S. 90, 100 (2003)).

[31] Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (citing Holland v. United States, 348 U.S. 121, 140 (1954)).

[32] Shaping Employment Discrimination LawThe Disparate Impact Theory of Discrimination, Equal Employment Opportunity Commission, http://www.eeoc.gov/eeoc/history/35th/1965-71/shaping.html (last visited Sept. 13, 2013); Griggs v. Duke Power Co., 401 U.S. 424, 433 n.9 (1971) (stating “EEOC Guidelines on Employment Testing Procedures, issued August 24, 1966, provide: The Commission accordingly interprets ‘professionally developed ability test’ to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant’s ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII.’”).

[33] Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971).

[34] Section 604 Theories of Discrimination, 604.7 Adverse Impact, EEOC Compl. Man., at *1 (BNA).

[35] Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).

[36] Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).

[37] The Statistics of Discrimination Using Statistical Evidence in Discrimination Cases, Part 1. Introduction to Statistics and Discrimination, Chapter 2. Statistics: An Introduction, § 2:5. The problem of causation, at 1 (West 2012).

[38] Section 604 Theories of Discrimination, 604.7 Adverse Impact, EEOC Compl. Man., at *1 (BNA).

[39] See Washington v. Davis, 426 U.S. 229 (1976).

[40] The Statistics of Discrimination Using Statistical Evidence in Discrimination Cases, Part 1. Introduction to Statistics and Discrimination, Chapter 2. Statistics: An Introduction, § 2:5. The problem of causation, at 1 (West 2012).

[41] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988).

[42] Washington v. Davis, 426 U.S. 229 (1976).

[43] Dorsey v. United States, 132 S. Ct. 2321, 2344, (2012) (Scalia, J., dissenting) (stating “only intentional discrimination may violate the equal protection component of the Fifth Amendment’s Due Process Clause”).

[44] E.g. 42 U.S.C. § 2000e-2(k) (employment discrimination).

[45] Washington v. Davis, 426 U.S. 229, 232 (1976).

[46] Id.at 233.

[47] Id.

[48] Id. at 234-35.

[49] Id. at 239 (original emphasis included).

[50] Id. at 242.

[51] 42 U.S.C. §2000e-2(k).

[52] Washington v. Davis, 426 U.S. 229, 241 (1976).

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