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Brooklyn Law Review

Abstract

Title VII recognizes both individual and group disparate treatment claims, which allege intentional discrimination. But Title VII recognizes only group claims for disparate impact. Conspicuously absent are claims for individual impact. The reason for the absence of an individual-disparate-impact claim is a problem of proof. To establish a Title VII claim, a plaintiff must prove that he or she lost a job opportunity was “because of” membership in a protected class. Showing that a single individual lost a job opportunity because of a test score, resume evaluation, or interview does not prove that any of these selection criteria unlawfully discriminated within the meaning of Title VII. A plaintiff would seemingly need a statistical basis to prove that one of these selection criteria would discriminate against the protected class in question. But an individual plaintiff faces the problem that the relevant sample size – perhaps only one – may be too small to support a meaningful inferential statistic. This observation casts doubt on the viability of individual-impact theory. If a group-based statistic is necessary to prove an individual’s case, then no independent theory of individual impact seems tenable. A feasible solution to this problem comes from the framework announced in McDonnell Douglas v. Green. Applied currently to disparate-treatment cases, this ingenious three-step burden-shifting framework provides a means of inferring intent absent direct evidence. If suitably adapted, this framework provides a means to sidestep the difficulty in developing a statistical basis for an impact claim and would permit an inference that an employment practice has a discriminatory impact on a protected class. This approach would rescue individual-impact theory from the dead zone that it now occupies. Such an approach would bring significant benefits. Deserving plaintiffs, previously denied judicial recourse, would have a viable claim. By broadening Title VII protections, such claims would deter employment discrimination. Perhaps most important, such claims would hold employers accountable for unconscious bias that might otherwise escape detection.

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