Disentangling Disparate Impact and Disparate Treatment: Adapting the Canadian Approach

Abstract

Confusion. There is no better way to describe the current state of U.S. law regarding allegedly discriminatory workplace standards (e.g., height or weight requirements or drug use policies). These claims are often brought under a "disparate impact" theory of discrimination-where a facially neutral employment policy has the effect but not the intent of discriminating against a group of employees. This theory has its origins in case law rather than statutes. Indeed, it was first recognized as a viable approach by the Supreme Court in 1971. As a result, the law developed on a case-by-case basis without a solid theoretical footing, leaving many questions for judges and litigators: How does disparate impact theory interact with claims of intentional discrimination ("disparate treatment")? How are remedies awarded under the two theories? Should disparate impact or disparate treatment analysis be applied when examining an employment standard? Must disparate impact and disparate treatment be specifically pled, and does failure to do so waive a plaintiffs rights to raise these arguments? Who bears the burden of proof?. In patchworklike fashion, courts have attempted to address these issues, often with conflicting results.