Disparate Impact/Disparate Treatment


What is Disparate Treatment?


Disparate treatment is defined by the United States Supreme Court as discrimination in which “the employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Whether or not an employer can be found liable “depends on whether the protected trait…actually motivated the employer’s decision.” 2


What is Disparate Impact?


Disparate impact focuses not on discriminatory intent, as disparate treatment does, but instead on discriminatory consequences. Disparate impact involves “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity…Proof of discriminatory motive, we have held, is not required under a disparate-impact theory.” 4


What does prima facie case mean and what do I have to prove?


Prima facie is Latin for "on its first appearance," and as a legal term it means a showing sufficient to establish your version of the story, although it may still be possible for your employer to disprove your version, which will be discussed below. 5 In other words, by establishing a prima facie case, you have shown the appearance of discrimination. If your employer cannot come up with a competing and better explanation of what happened, you've won your case.

You can show a prima facie case of discrimination under Title VII by showing disparate treatment or by showing disparate impact. The prima facie cases vary depending on what type of case you are bringing (i.e. firing, pregnancy discrimination, etc.).


How do I prove in a Pennsylvania state court that my employer discriminated against me?


In Pennsylvania, when a woman is trying to prove that she has been discriminated against based on her sex, the burdens of proof and order of presentation of proof follow this three-step process for both disparate impact and disparate treatment:

  1. Prima facie case: You must show that your employer’s facially neutral policy has substantial adverse impact on you (as a member of a protected class, i.e., a woman).6 Facially neutral means that a policy or practice does not make a specific reference to sex.
  2. Business necessity: The burden of proof now shifts to your employer. Your employer must show that the policy, practice, or test is a business necessity.7 To prove a business necessity, your employer must establish more than a mere allegation.8 For example, if your employer requires that all employees be at least 5’8”, she must show that the height requirement is necessary for efficient job performance.
  3. Alternatives with a lesser impact: You can respond by showing that there was an effective alternative practice or selection device that your employer refused to implement and that would have had a lesser disparate impact than the policy, practice, or test she used.7

For disparate treatment, the prima facie case is the same under Title VII and under the Pennsylvania Human Relations Act (PHRA). You must demonstrate the following elements:

  1. You are a member of a protected class (i.e., a woman);
  2. You were qualified for a position sought or held;
  3. You were discharged from or denied the position; and
  4. Non-members of the protected class were treated more favorably.10

For disparate impact, the prima facie case is different in that you do not need to show your employer’s motive, but only that the policies and practices at issue have had a substantially disproportionate impact on women.12


What is the prima facie case for disparate treatment in the federal courts?


There are three situations in which disparate treatment is recognized: rejection in hiring, terms and conditions of employment, and firing.


To show disparate treatment where you have not been hired, you must show that:

  1. You are a member of a protected class (i.e., a woman);
  2. You applied and were qualified for a job for which the employer was seeking applicants;
  3. You were rejected, despite your qualifications; and
  4. The employer continued to solicit applicants with qualifications equal to yours. 12

Disparate treatment also manifests itself in the terms and conditions of employment. To establish a claim of this sort you must show that:

  1. You are a member of a protected class (i.e., a woman);
  2. You were subjected to an adverse job action;
  3. Your employer treated similarly situated male employees more favorably; and
  4. You were qualified to do the job. 13

Lastly, you can file a claim for disparate treatment if you think you were unjustly fired from your job. The prima facie case here is established by showing:

  1. You are a member of a protected class (i.e., a woman);
  2. You were fired;
  3. At the time you were fired, you were performing at a level that met the employer’s legitimate expectations; and
  4. The position was filled by a similarly qualified male applicant.14

What is the prima facie case for disparate impact in the federal courts?


In order to establish the prima facie case for disparate impact, you must show:

  1. The existence of a disparity;
  2. That the disparity was caused by a specific employment device, policy, or practice;
  3. That the challenged policy was not justified by business necessity; and
  4. That less discriminatory measures were available to the employer and would have served its needs equally well. 15

Disparate Treatment: “It Happened to Me” 16


Emily E. Davis Winn (Winn), a black woman, worked for Trans World Airlines, Inc. (TWA). Eight years after she joined TWA, she became a Reservation Sale Agent in TWA’s Pittsburgh office. A year later, she applied to be a Senior Sale Representative in the Pittsburgh office and was not given an interview. The position was later filled by a white man.

The following year, Winn applied and was interviewed for the position of Field Training Instructor. The successful candidate was a white woman. Later that year, Winn applied for one of seven Team Coordinator positions. She was interviewed, but TWA selected four white men and three white women for the positions. Winn then applied for a position as a Cargo Account Executive and did not receive an interview. Furthermore, her regional manager told her that a woman would not be considered for the job. She applied again for the position of Senior Sales Representative. She was interviewed, but TWA gave the job to a white man.

Winn filed a complaint with the Pittsburgh Commission on Human Relations (Commission), charging TWA with race and sex discrimination for failure to promote her. She sought a promotion and back pay. After failed attempts to settle the dispute, the Commission held a public hearing. As a result, it ordered TWA to stop discriminating against its employees on the basis of sex or race and directed TWA to pay Winn the additional wages she would have earned as a Senior Sales Representative.

TWA appealed the decision to the Court of Common Pleas of Allegheny County, which reversed. Following the reversal, Winn appealed to the Commonwealth Court, which reinstated the Commission’s order. TWA further appealed to the Supreme Court of Pennsylvania.

TWA argues that under the Pennsylvania Human Rights Act, Winn had the burden of proving that she was “the best able and most competent to perform the services required.” Because the Court found that Winn had met her burden, TWA had to show a legitimate, nondiscriminatory reason for not hiring Winn. The Court decided that the case should be sent to the Pennsylvania Human Rights Commission to give Winn a chance to prove her case and get the remedy she deserved.



1 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977).
2 Raytheon Co. v. Hernandez, 540 U.S. 44, 52, 13 AD 1825 (2003)(quoting Hazan Paper Co. v. Biggens, 507 U.S. 604, 610 (1993)).
3 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977).
4 Id.
5 Black’s Law Dictionary 560-561 (3rd pocket ed. 2006).
6 Griggs v. Duke Power Co., 401 U.S. 424 (1971).
7 Id.
8 Conn. v. Teal, 457 U.S. 440, 446 (1982).
9 42 U.S.C.A. 2000e-2(k)(1)(A)(ii) (2009).
10 Pittman v. Cont’l Airlines, Inc., 35 F.Supp.2d 434 (E.D.Pa. 1999).
11 Gilty v. Oak Park, 919 F.2d 1247, 1254 (7th Cir. 1990).
12 McDonnell Douglas Corp. v. Green, 411 U.S. 792 801-802 (1973).
13 Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003).
14 King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003).
15 Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
16 Winn v. Trans World Airlines, Inc., 484 A.2d 392 (Pa. 1984).