TITLE VI – INTENTIONAL DISCRIMINATION

AND DISPARATE IMPACT
 

 

 

 

denied the benefit f b subjected to discriminati und s o , or e on er 

TITLE VI - INTRODUCTION

What is the law?

“No person in the United States shall, on the ground of race, 

color, or national origin, be excluded from participation in, be

denied the benefits of, or be subjected to discrimination under 

any program or activity receiving Federal financial assistance.”

Title VI of the Civil Rights Act of 1964; 42 U.S.C. § 2000d, et seq. 

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 Retaliation

WHAT IS PROHIBITED DISCRIMINATION

UNDER TITLE VI?

 Intentional Discrimination

 Disparate Treatment

 Retaliation

 Disparate Impact

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens 

of the United States; nor shall any State deprive any person of life, liberty, or property, without 

due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 

U.S. Const. amend. XIV, § 1.

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WHAT IS PROHIBITED DISCRIMINATION

UNDER TITLE VI?

Disparate Treatment Disparate Impact

Direct

Evidence

Indirect

Evidence

McDonnellDouglas

Direct

And

Indirect

Arlington

Heights

Disparately 

excludes from 

benefits or 

services based

on race, color, or 

nat’l origin 

Inflicts 

disproportionate 

share of harm

based on race, 

color, or nat’l

origin

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national origin. 

DISPARATE TREATMENT

What is Disparate Treatment?

Similarly situated persons are treated differently because of their race, color, or

national origin. 

Discriminatory intent need not be the only motive, but a violation occurs when the

evidence shows that the entity adopted a policy at issue “because of,” not merely “in 

spite of,” its adverse effects upon an identifiable group.”

Does not require “bad faith, ill will or any evil motive.”

Evidence may be direct or circumstantial.

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• Provide services in a different manner.

DISPARATE TREATMENT

What are the statutory sources for Disparate Treatment?

Statute

“...on the ground of race, color, or national origin, be 

excluded from participation in, be denied the benefits of, 

or be subjected to discrimination...”

42 U.S.C. §2000d

Regulations

• Deny an individual any disposition, service, financial aid, 

or benefit.

• Provide services in a different manner.

• Subject to segregation or separate treatment.

• Restrict in any way the enjoyment of any advantage or 

privilege.

• Treat an individual differently in admission, eligibility, 

enrollment...or other requirement.

• Deny opportunity to participate.

• Discrimination in construction site selection

49 C.F.R. § 21.5(b); 28 C.F.R. §42.104(b)

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based on race, color, or national origin, such a policy or practice constitutes an express 

the race, color, or national origin of the beneficiary, or directs adverse action to be taken 

DISPARATE TREATMENT

What is Disparate Treatment – Direct Evidence?

1. Express classifications. If recipient explicitly conditions receipt of benefits or services on 

the race, color, or national origin of the beneficiary, or directs adverse action to be taken 

based on race, color, or national origin, such a policy or practice constitutes an express 

classification. 

2. Comments or Conduct by Decision-Makers. This direct method of proof typically involves 

a statement from a decision-maker that expresses a discriminatory motive.

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under “strict scrutiny” standard; narrowly tailored to achieve a 

DISPARATE TREATMENT

What is Disparate Treatment – Direct

Evidence?

Express classifications of race, color, or nat’l origin are reviewed 

under “strict scrutiny” standard; narrowly tailored to achieve a 

compelling government interest.

Establishes intent without regard to animus as a matter of law—

further evidence of intent not necessary. 

Related: even without express classification, overreliance on 

“illegitimate selection criteria” can be basis for intentional 

discrimination. 

However, recipients may consider race, color, 

or nat’l origin to overcome identified or past

discrimination. 49 C.F.R. §21.5(b)(vii)(7). 

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DISPARATE TREATMENT

What is Disparate Treatment – Comments/Conduct by Decision-Makers?

Discriminatory Comments and Conduct by decision-makers can be evidence, 

unto itself, that a decision-maker intended to discriminate.

Key is whether isolated comments were contemporaneous and causally related 

to the challenged decision.

Stray remarks are not direct evidence but are still important evidence to

consider.

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Direct nce

Indirect

Evide

Direct

And Direct

Evidence

Evidence

McDonnellDouglas

And

Indirect

Arlington

Heights

DISPARATE TREATMENT

If direct evidence unavailable, then two other

indirect methods can be used. McDonnell Douglas test:

1. Essential Elements (prima facie case):

a. Member of protected class.

b. Eligible as beneficiary for federally-assisted program.

c. Rejected despite eligibility.

d. Similarly situated beneficiaries received benefit.

2. Next, agency determines whether legitimate, nondiscriminatory 

reason exists. 

3. Then, investigating agency must determine whether reason 

offered is a pretext for discrimination and whether a less 

discriminatory alternative exists. 

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• Statistics sh wing of discrimin eff o pattern atory ects; Direct

Indirect

Evidence

Direct

And Direct

Evidence

Evidence

McDonnellDouglas

And

Indirect

Arlington

Heights

DISPARATE TREATMENT

What is Disparate Treatment – Direct + Indirect Evidence, the 

Arlington Heights standard?

Examination of “totality of relevant facts” and factors, including, 

but not limited to:

• Statistics showing pattern of discriminatory effects;

• Historical background of the decision and other decisions on 

comparable matters;

• Sequence of events leading to the decision, compared to other

decisions on comparable matters;

• Departures from normal procedures or substantive conclusions;

• Relevant legislative or administrative history; and

• Consistent pattern of actions of decision-makers that impose much greater harm on one group.

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private lawsuits based on disparate impact. The

DISPARATE IMPACT – LEGAL SOURCES

Notable correction by Court in Alexander v. 

Sandoval, 532 U.S. 275 (2001). U.S. Supreme

Court Held Title VI statute does not allow for 

private lawsuits based on disparate impact. The

private right of action is only for disparate 

treatment. 

However, the Sandoval Court also recognized 

federal agencies may pass disparate impact 

regulations, which are enforceable under

administrative law by those agencies. 

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participation in, be denied the such will be provided under any such program, or the class of

DISPARATE IMPACT – LEGAL SOURCES

Statute

“...on the ground of race, color, or 

national origin, be excluded from 

participation in, be denied the 

benefits of, or be subjected to 

discrimination...”

[Private right of action limited by 

Sandoval, but agencies authorized to 

create disparate impact regulations]

42 U.S.C. §2000d.

Regulations

“A recipient, in determining the type of disposition, services, financial 

aid, benefits, or facilities which will be provided under any such 

program, or the class of individuals to whom, or the situations in which, 

such will be provided under any such program, or the class of

individuals to be afforded an opportunity to participate in any such 

program, may not, directly or through contractual or other

arrangements, utilize criteria or methods of administration which 

have the effect of subjecting individuals to discrimination because 

of their race, color, or national origin, or have the effect of defeating 

or substantially impairing accomplishment of the objectives of the 

program as respects individuals of a particular race, color, or national 

origin.”

49 C.F.R. § 21.5(b); 28 C.F.R. §42.104(b).

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DISPARATE IMPACT – LEGAL SOURCES

Therefore:

 Recipients are responsible for ensuring 

nondiscriminination regarding disparate impact.

 Persons may file complaints with federal agencies 

against recipients.

 Federal agencies may initiate compliance reviews; and 

Federal agencies may find recipients non-compliant, 

resulting in potential loss of federal funding. 

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, 

Substantial

Legitimate 

Justification

Adverse 

Disparate 

Impact

Less 

Discriminatory 

Alternatives

race, color or nat’l origin on a population or 

Substantial

Legitimate 

Justification

Adverse 

Disparate 

Impact

Less 

Discriminatory 

Alternatives

Impact

DISPARATE IMPACT

What are the elements of disparate impact?

1. Facially neutral procedure or practice;

2. Disproportionate, adverse impact based on 

race, color, or nat’l origin on a population or 

populations; and 

3. Practice lacks a substantial legitimate

justification.

 Causal connection between policy and the impact. 

Often through statistical data.

 No less discriminatory alternative. 

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DISPARATE IMPACT

Title VI analysis involves pairing two things:

Demographics + Impact or Benefit

For example:

1. Decennial Census + Noise Impacted Residences

2. ACS + Vital Documents to be Translated

3. Relocatee Demographic Surveys + Relocation Financial Data

4. Public Meeting Demographics + Overall Area Population 

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determined at any time.

DISPARATE IMPACT

General Application

Applies to benefits and burdens.*

Analysis not sequential: substantial legitimate justification can be 

determined at any time.

FHWA-funded state actions frequently entail multiple potential 

impacts. 

o Air Quality o Right-of-Way / Relocation

o Noise o Public Meeting Solicitation

o Contracting o Public Comments

o Environmental Mitigation o Community Cohesion

o Temporary traffic and pedestrian o Safety routes

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DISPARATE IMPACT

General Application

Benefits and burdens aren’t compared like

a balance sheet or a scale – benefits don’t 

necessarily ”cancel out” burdens. • If mitigation directly reduces a burden’s 

impact then it can be compared. E.g. sound

walls can directly reduce noise impacts.

• But if benefits don’t directly reduce a 

burden, then they are separate 

considerations for Title VI. E.g. improving a 

park doesn’t mitigate poor air quality. 

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show disparate impact.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994–95 (1988).

DISPARATE IMPACT

Establishing Disparate Impact

 “No rigid mathematical threshold of disproportionality that must be met to 

show disparate impact.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994–95 (1988).

 Sometimes, disparate effect of policy or practice so obvious or predictable 

that comparative statistics are unnecessary (Lau v. Nichols, 414 U.S. 563, 568

(1974), but data is still necessary to establish.

 However, disparate impacts are often established using statistical data and 

analyses, to determine whether the policy or practice is disproportionate on 

a population and causally related to the adverse impacts. Darensburg v. Metro. 

Transp. Comm., 636 F.3d 511, 520–22 (9th Cir. 2011). 

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DISPARATE IMPACT

Establishing Disparate Impact

Let’s say you know the following number of persons 

are adversely affected by a project:

Demographic # of Persons

Group Affected

African-American 500

Hispanic 30

Asian 5

White 500

Which population would you say is the most disproportionately

affected?

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Total in 

DISPARATE IMPACT

Establishing Disparate Impact

Right – we can’t say anything about the proportion without knowing the totals 

for each population!

Demographic Group # of Persons Affected

Total in 

Project 

Area

% Affected 

of Group

African-American 500 9000 5.56%

Hispanic 30 30 100.00%

Asian 5 10 50.00%

White 500 2500 20.00%

Now we can see that Hispanic persons have the highest proportion of adversely affected 

persons compared to other groups – even though Hispanics are not the largest population. 

The Disparate Impact analysis would focus on those and similar groups. This topic is discussed 

more in later training sessions. 
 

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636 F.3d 511, 519 (9th Cir. 2011).

DISPARATE IMPACT

Establishing Disparate Impact

Relevant comparator population – agencies must “take into account the correct 

population base and its racial makeup.” See Darensburg v. Metro. Transp. Comm’n, 

636 F.3d 511, 519 (9th Cir. 2011).

E.g. Comparator population for a road project would not be transit project or 

transit user population data. Alternately, whether to compare a project area 

population to an entire metro area population will depend on the facts 

Central question is: to which persons does this policy or practice apply or affect? 

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Disparate Disparate Legitimate Legitimate 

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Adverse Substantial 

Legitimate 

Justification

Less 

Discriminatory 

Alternatives

Disparate 

Impact

DISPARATE IMPACT

Substantial Legitimate Justification (SLJ)

A SLJ determination is highly fact-sensitive and based on two 

main criteria:

1. Was the challenged policy necessary to meeting a goal that 

was legitimate, important, and integral to the [recipient's] 

institutional mission."

2. Does the justification bear a manifest demonstrable relationship

to the challenged policy or practice.

SLJ must be supported with objective data and information, 

rather than self-serving, subjective statements. 

Adverse Substantial 

Legitimate 

Justification

Less 

Discriminatory 

Alternatives

Disparate 

Impact

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discriminatory alternative that is feasible and meets the established legitimate 

DISPARATE IMPACT

Less Discriminatory Alternatives (LDAs)

If SLJ is shown, then agency must determine whether there exists a less 

discriminatory alternative that is feasible and meets the established legitimate 

objectives of the agency.

Alternatives should be evaluated on equal criteria for comparison and must 

adequately meet the established need. An alternative that is not adequate is 

not a fair comparator. 

Some actions may require the development of alternatives by

statute/regulation, such as some construction projects during environmental 

review.

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