Periodic report of the united states of america to the united nations committee on the elimination of racial discrimination

B. Racial discrimination mixed with other causes of discrimination

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B. Racial discrimination mixed with other causes of discrimination.

203. As noted in this Report and in Section III B 1 of the Common Core document, most U.S. laws prohibit discrimination based on a number of different factors, including factors not covered by the Convention. Cases may be brought and won based on multiple types of discrimination.

Article 6

204. U.S. law offers numerous avenues for individuals to seek remedies for acts of racial discrimination. While litigation can be costly, lower-cost administrative remedies are also available in many cases at all levels. Available remedies are described in paragraphs 156 –158 of the Common Core Document and in the response to paragraph 25 of the Committee’s Concluding Observations above.

205. As noted throughout this Report, government agencies at all levels and civil society organizations engage in active outreach to provide information concerning rights and remedies. U.S. law and policy also seek to ensure that victims do not fear or endure reprisals for seeking relief from discrimination; retaliation is a basis for suit with regard to employment discrimination. Agencies train their enforcement officials to ensure that they are sufficiently alert to and aware of offenses with racial motives, and that victims can trust that police and judicial authorities will address complaints with fairness and effectiveness. We recognize that responses by authorities do not always meet the standards sought, and we commit to continue to improve outreach and services to victims of discrimination at all levels.

206. With regard to issues related to burden of proof in civil proceedings and paragraph 35 of the Committee’s Concluding Observations, as noted above in response to paragraph 10 of the Committee’s Concluding Observations, U.S. law does not invariably require proof of discriminatory intent.  While a violation of the U.S. Constitution requires such proof, many of our most fundamental civil rights statutes and regulations go further, prohibiting policies or practices that have an unjustified disproportionate or disparate impact on racial or ethnic minorities and other protected classes. When the facts support the use of disparate impact theory, the United States is committed to using these valuable tools. 

207. For example, under Title VII of the Civil Rights Act of 1964, as amended, the principal federal legislation prohibiting race-based employment discrimination, an employer may be liable for employment practices that are intentionally discriminatory (disparate treatment) or that are facially neutral but disproportionately screen out racial or other minorities, absent a demonstration that the challenged practice is job related for the position in question and consistent with business necessity. The burdens of proof in these two types of cases differ.

208. To prevail in a Title VII disparate treatment case, a plaintiff must establish that race or another protected characteristic was a motivating factor for an employment practice.  Title VII follows the conventional rule of civil litigation in the United States, which requires the plaintiff to prove his or her case by a preponderance of the evidence.  Typically, the plaintiff does this by establishing a prima facie case of discrimination and then by showing that the employer's asserted reason for the employment practice was a pretext for discrimination. A prima facie case of disparate treatment is relatively easy to establish, and therefore may create only a weak inference of discrimination.  Its main function is to eliminate some of the more common nondiscriminatory reasons for an employment decision, such as that the plaintiff was not qualified for the job.  By eliminating these reasons, the prima facie case creates an inference of discrimination in the absence of evidence of a legitimate, nondiscriminatory reason for the decision. By presenting evidence that the decision was taken for a nondiscriminatory reason, the employer, in turn, can eliminate that inference.  To prevail, the plaintiff bears the ultimate burden of proof in showing that the employer's action was motivated by discrimination.  Often, this is accomplished by showing that the employer's stated reason for its action was really a pretext for discrimination.

209. A disparate impact claim, on the other hand, requires a plaintiff to isolate a specific employment practice and to show that it has a significant disparate impact on racial or ethnic minorities.  In a disparate impact case, once there has been a sufficient showing of impact, the employer's only defense is to show that the action is job related for the position in question and justified by business necessity.  An employer is in a much better position than the plaintiff to establish whether its policy is required for safe or efficient business operations, and therefore, the employer bears the burden of proof in showing business necessity. The employee ultimately has an opportunity to rebut the employer’s business necessity case by showing that alternative policies or practices could satisfy the employer’s needs with less impact on the affected group. 

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