Disparate Impact

• Author: Jeffrey Lehman, Shirelle Phelps

Page 459

A theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect.

Under Title VII of the CIVIL RIGHTS ACT OF 1964, plaintiffs may sue employers who discriminate on the basis of race, color, gender, religion, or national origin. Employers who intentionally discriminate are obvious candidates for a lawsuit, but the courts also allow plaintiffs to prove liability if the employer has treated classes of people differently using apparently neutral employment policies. The disparate impact theory of liability will succeed if the plaintiff can prove that these employment policies had the effect of excluding persons who are members of Title VII's protected classes. Once disparate impact is established, the employer must justify the continued use of the procedure or procedures causing the adverse impact as a "business necessity."

Proof of discriminatory motive is not required, because in these types of cases Congress is concerned with the consequences of employment practices, not simply the motivation. If the employer proves that the requirement being challenged is job related, the plaintiff must then show that other selection devices without a similar discriminatory effect would also serve the employer's legitimate interest in efficient workmanship.

The Supreme Court, in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), articulated the disparate impact theory and constructed a model of proof that the plaintiff and defendant must use in presenting their cases. In Griggs, the employer required a high school diploma and a passing score on two professionally developed tests. Although the lower courts found no liability because the plaintiff failed to prove that the employer had a discriminatory motive for the requirements, the Supreme Court reversed the decision. The Court stated that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." In a famous quote, the Court said that the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built in headwinds' for minority groups...