Proving Discrimination under the EPC

Proving Discrimination Under the Equal Protection Clause

1. The person alleging discrimination, in the absence of a statutory classification, must show that a discriminatory purpose was a MOTIVATING factor in the government's action or decision.

Note: A motivating factor need not the the SOLE factor in the decision.
          A motivating factor need not be the PRIMARY factor in the decision.

2. To show that a discriminatory purpose was a motivating factor, the following evidence could be offered:

(1) Evidence that the action or decision has a disproportionate impact on the class--the more disproportionate the impact, the stonger the evidence.
(2) Statements by government decision-makers suggesting a discriminatory purpose:
           --Statements at the time of decision
             --Statements at the time of trial
(3) A suspicious pattern of events leading up to the decision
(4) Evidence that the decision was a departure from usual procedures

3. If a discriminatory purpose is established, the government can defend its decision by showing that the same decision would have been made even without the discriminatory purpose.