on whether the treatment is based on an individual’s race or some other factor that results in a differential racial outcome. As we discuss further below, we are particularly interested in discrimination that disadvantages racial minorities.

The first component of our definition of racial discrimination occurs when a member of one racial group is treated less favorably than a similarly situated member of another racial group and suffers adverse or negative consequences. This definition of discrimination is used in many social science fields (e.g., economics, psychology, sociology) to refer to unequal treatment because of race. Intentional discrimination of this kind is frequently unlawful under either the Constitution or specific legislative prohibitions, such as those in employment, housing, and education. The second component of our definition of racial discrimination includes some instances in which treatment based on inadequately justified factors1 other than race results in adverse racial consequences, such as a promotion practice that generates differential racial effects. A process with adverse racial consequences may or may not be considered discrimination under the law, depending on whether there is a sufficiently compelling reason for its use and whether there are alternative processes that would not produce racial disparities.2 In the areas in which this type of discrimination is unlawful, the reason is to curtail the use of unintentional practices that can harm racial minorities, as well as to sanction intentional discrimination that might not be identified because of the difficulty in establishing intent in the legal setting.3

The two components of our definition—differential treatment and differential effect discrimination—are related to, but broader than, the standards applied in a large body of case law—disparate treatment and disparate impact discrimination (see the detailed discussion below in this chapter).4 Legally defined, disparate treatment racial discrimination occurs when an

1  

Inadequately justified factors refer to those factors within a particular domain that are not justified (germane) for the purpose for which they are used.

2  

Because the Constitution does not itself prohibit disparate impact discrimination, governmental actions will be scrutinized only under this second legal theory of discrimination if they are covered by a specific legislative command (see discussion in “The Legal Definition of Discrimination” below).

3  

For example, in Griggs v. Duke Power Co. (401 U.S. 424 [1971]), the Supreme Court held that Duke Power Company used high school graduation and standardized testing requirements to mask their policy of giving job preferences to whites and not to blacks (i.e., disparate treatment discrimination). Neither requirement was intended to measure an employee’s ability or performance in a particular job or job category within the company.

4  

For clarity, when referring to legal definitions of racial discrimination, we use the terms “disparate treatment” and “disparate impact.” References to “discrimination” refer to our two-part definition.



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