Proving Discrimination after Price Waterhouse and Wards Cove

INTRODUCTION Anyone involved in litigation under Title VII of the Civil Rights Act of 19641 or similar state statutes may wonder what is entailed in proving or disproving discrimination after the United States Supreme Court\u27s October 1988 Term. In fact, in the pending Civil Rights Act of 1990, Congress is considering reversing some of what the Supreme Court did during that Term. One of the issues that the Supreme Court addressed during the 1988 Term involved allocating burdens of proof in two major types of Title VII claims, dis- parate-treatment and disparate-impact. Price Waterhouse v. Hopkins, dealt with a disparate-treatment claim, resulted in a plurality opinion, two concurrences and a dissent, and held that the defendant had the burden of proving that discrimination did not cause an adverse employment decision. Wards Cove Packing Co. v. Atonio dealt with a disparate-impact claim, resulted in a five-four decision, and held that the defendant only had the burden of producing evidence of, not the burden of proving, a business justification of practices causing a disparate-impact. In so holding, Wards Cove brought to disparate-impact cases an allocation of proof that previously had been limited to early disparate-treatment cases. The problem with any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual\u27s race, color, religion, sex or national origin