Law Office of David Miklas, P.A.

management labor & Employment law

The two types of actionable discrimination under Title VII are: disparate treatment and disparate impact. Although proof of discriminatory intent is necessary for an employee to succeed on a claim of disparate treatment, a claim of disparate impact does not require evidence of intentional discrimination.

To prevail on a disparate treatment claim, a Title VII employee must demonstrate that an employer intentionally discriminated against her on the basis of a protected characteristic. The question in a disparate treatment case is whether the protected trait actually motivated the employer’s decision. Generally speaking, an employee can prove disparate treatment by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or by circumstantial evidence using a burden-shifting framework.

In contrast, a disparate impact claim does not require proof of discriminatory intent. A disparate impact claim targets an employment practice that has an actual, though not necessarily deliberate, adverse impact on protected groups. The disparate impact theory prohibits neutral employment practices that, while non-discriminatory on their face, result in an adverse and disproportionate impact upon a protected group. Under such a theory, the employee must establish that

(1) there is a significant statistical disparity between the proportion of members of the protected class available in the labor pool and the proportion of members of the protected class hired;

(2) there is a specific, facially neutral employment practice; and

(3) a causal nexus exists between the employment practice and the statistical disparity.

A potential employee may prove a prospective employer discriminated against him through direct or circumstantial evidence. Direct evidence of discrimination is evidence, that, if believed, proves the existence of a fact in issue without inference or presumption.  This is sometimes called, “smoking gun” evidence if Discrimination. With circumstantial evidence, an employee may prove his case via a burden-shifting framework. 

Under this framework, the employee carries the initial burden of establishing a prima facie case of discrimination on account of race. To establish a prima facie case of race discrimination, the employee must show she (1) is a member of a protected racial class; (2) was qualified for the position; (3) experienced an adverse employment action; and (4) was replaced by someone outside of her protected class or received less favorable treatment than an individual outside of her protected class.

Regarding the third element (adverse action), an adverse employment action requires a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. To prove the existence of an adverse employment action, an employee must also show a serious and material change in the terms, conditions, or privileges of employment. The employee’s subjective view of the significance and adversity of the employer’s action is not controlling. Rather, the employment action must be materially adverse as viewed by a reasonable person under the same circumstances.

If the employee establishes a prima facie case of race discrimination, the defendant employer must present a legitimate, nondiscriminatory reason for the adverse employment action. If the employer presents a legitimate, nondiscriminatory reason for the employment action, the employee must offer evidence that the proffered reason was pretext for discrimination. The employee may do so by demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence. At this step, the employee must meet the employer’s reason head on and rebut it. The pretext inquiry focuses on whether the employer gave an honest explanation for its behavior.

Where an employee seeks to prove his claims with circumstantial evidence, in a traditional failure-to-hire case, he establishes a prima facie case of disparate treatment by showing that:

(1) he was a member of a protected class;

(2) he applied and was qualified for a position for which the employer was accepting applications;

(3) despite his qualifications, he was not hired; and

(4) the position remained open or was filled by another person outside of his protected class.

Although a Title VII lawsuit does not need to allege facts sufficient to make out a classic McDonnell Douglas prima facie case, it must provide enough factual matter (taken as true) to suggest intentional discrimination.

An employee may prove a prima facie case of disparate impact discrimination by the following two-step process:

The employee must first identify the specific employment practice that allegedly has a disproportionate impact.


The employee must demonstrate causation by offering statistical evidence sufficient to show that the challenged practice has resulted in prohibited discrimination.Title VII requires a plaintiff to exhaust certain administrative remedies by filing a timely charge of discrimination with the EEOC before filing a suit for employment discrimination.


If you have any questions about race discrimination, pelase email our law office or call us at 1-772-465-5111.



Race discrimination lawyers in Port St. Lucie often explain to businesses that when an employee sues an employer for race discrimination, it is usually under the federal statute called Title VII of the Civil Rights Act.

Under Title VII, an employer may not fail or refuse to hire any individual because of such individual’s race. Similarly, an employer may not limit, segregate, or classify his employees or applicants for employment in 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’s race.  Title VII provides that an unlawful employment practice is established when the complaining party demonstrates that race was a motivating factor for any employment practice, even though other factors also motivated the practice.

In general, Port St. Lucie companies that receive a complaint about race discrimination should realize that there are two theories under which an employee can pursue their race discrimination claim: a disparate treatment or a disparate impact claim.