Distinguishing Disparate Treatment from Disparate Impact; Confusion on the Court

In two decisions in the 2014-2015 Term, Young v. United Parcel Service, Inc., and Equal Employment Opportunity Commission v. Abercrombie & Fitch, Inc., the Court seemed to give contradictory answers to an important unresolved conceptual definitional question: Does disparate treatment include assigning members of a protected group based on their protected status to a larger disfavored group that is defined by neutral principles and that includes others who are not members of the protected group? Or does such assignment have only a disparate impact on the protected status group? In Young, the first of these decisions, all members of the Court, though divided on the appropriate analysis, seemed to assume that consideration of protected status in assigning an individual to a more broadly defined larger disfavored group is not overt disparate treatment. In Abercrombie, however, a conceptually identical case involving alleged religion-based rather than pregnancy-based discrimination, eight members of the Court held that consideration of a protected religious practice under a general policy that defined a larger group to be disfavored is illegal disparate treatment, absent the availability of a statutory defense. The Court’s decision in Young was unfortunate. This is not only because the majority opinion diluted the Pregnancy Amendment Act (PDA) amendments to Title VII with a confusing opinion that provided incomplete guidance for future cases or even the Young case itself on remand. It is also because the opinion weakened the appropriate clarification that the Abercrombie decision might have given to the conceptual line between the disparate treatment and disparate impact forms of discrimination proscribed by Title VII. The essay explains why disparate treatment analysis is appropriate in cases where protected status is taken into account under a more general policy that defines a disfavored group that encompasses but is more inclusive than the protected status