Watson, Wards Cove, and The Burden of Proof in Disparate Impact Discrimination

Brian P. Heshizer

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DOI: 10.2190/YBEV-FBTE-4W5F-LT9M

Abstract

Recent Supreme Court cases have established for disparate impact discrimination claimants the same burden of proof carried by claimants under disparate treatment discrimination. In the Watson case, the Court extended disparate impact to cover subjective employment practices such as interviews but maintained that plaintiffs had throughout the burden of proof. In Wards Cove, the Court reiterated that plaintiffs carried the burden of proof in disparate impact cases. Until these decisions, some courts had maintained that the burden of proof shifts from plaintiff to employer once the prima facie case had been established. These Supreme Court decisions have provoked a vigorous and often strident debate on the meaning and application of discrimination law. This article frames the issues in this debate and analyses the implications for disparate impact discrimination.

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