After 50 years of jurisprudence on Title VII, employment practitioners and judges agree that Title VII and the Age Discrimination in Employment Act (ADEA) provide for two separate types of discrimination claims: disparate impact and disparate treatment. Disparate treatment claims derive from the first provision in 42 U.S.C. 2000e-2(a)(1), while disparate impact claims are derived from the second provision 42 U.S.C. 2000e-2(a)(2). Each demands separate proof structures.
Disparate treatment claims require a plaintiff to prove that intentional discrimination was the cause of an adverse employment action and focus on the intent of the bad actor, regardless of whether that intent caused the employment action or the employment action rose to the level of an adverse action. Negative employment evaluations, lateral transfers, exclusions from training or other advancement opportunities are not actionable adverse actions. Disparate impact cases focus instead on whether there is statistically significant proof of an adverse effect based on a facially neutral policy, procedure or practice. Proof of intent is not required.
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