The primary theories under which Title VII plaintiffs can file are disparate treatment and disparate impact.
Disparate treatment occurs when the employer treats some people less favorably than others because of their membership in a protected class. The employee must prove discriminatory intent to succeed. Under the McDonnell Douglas Test the plaintiff may establish a prima facie case (a case that if unrebutted by the employer would establish illegal discrimination) by proving each of the following factors:
Plaintiff is a member of the protected class protected by Title VII.
Plaintiff applied and was qualified for the position.
Despite being qualified for the position, plaintiff was not hired or was discharged.
After being rejected or discharged, the position remained open and the employer continued to seek applicants for the position.
The plaintiff has the burden of proof to establish that each of the above factors were present or the case will be dismissed. If the above test is met, the employer must “articulate” a non-discriminatory reason for the action: e.g., “He was fired because he was late to work on ten occasions.” Employers may also show that the basis of termination or action was a bona fide qualification (BFOQ)—permissible discrimination if legally necessary for the business.
If the employer articulates a non-discriminatory reason for its action, then the plaintiff has the final burden of proof. He has to establish that the stated reason (always late for work) was pretextual, that is, not the true reason for the action. The plaintiff can demonstrate this by showing that a number of other employees not of the same race have been late to work on ten occasions but were not fired.
Disparate impact occurs when employer practices or policies that are facially neutral, such as objective employment tests or minimum height and weight requirements, in fact impact more harshly on one group than another and cannot be justified by business necessity. There is no need to prove discriminatory intent, only that the application of the practice has created the disparate impact.
Example: An employer requirement that all police officers be at least 200 pounds and six feet tall. This will disqualify many women or other groups of people who many not normally meet the requirement.
Selection methods for hiring or promotions must be justified by business necessity.