Disparate impact in the law of the United States refers to practices in employment, housing, and other areas that adversely affect one group of people of a protected characteristic more than another, even though rules applied by employers or landlords are formally neutral. Although the protected classes vary by statute, most federal civil rights laws consider race, color, religion, national origin, and sex to be protected characteristics, and some laws include disability status and other traits as well. Disparate impact can be justified with the normative goal of substantive equality, the equality of outcomes for groups.[1]
A violation of Title VII of the 1964 Civil Rights Act may be proven by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class as compared with non-members of the protected class.[2] Therefore, the disparate impact theory under Title VII prohibits employers "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."[3] Where a disparate impact is shown, the plaintiff can prevail without the necessity of showing intentional discrimination unless the defendant employer demonstrates that the practice or policy in question has a demonstrable relationship to the requirements of the job in question.[4] This is the "business necessity" defense.[2]
Some civil rights laws, such as Title VI of the Civil Rights Act of 1964, do not contain disparate impact provisions creating a private right of action,[5] although the federal government may still pursue disparate impact claims under these laws.[6] Although they do not contain explicit disparate impact provisions, the U.S. Supreme Court has held that the Age Discrimination in Employment Act of 1967[7] and the Fair Housing Act of 1968 create a cause of action for disparate impact.[8]
- ^ Fredman, Sandra. "Substantive equality revisited." International Journal of Constitutional Law 14.3 (2016): 712-738.
- ^ a b EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86, 92 (N.D. Ga. 1981)
- ^ Fick, Barbara J. (1997). The American Bar Association guide to workplace law : everything you need to know about your rights as an employee or employer (1st ed.). New York: Times Books. p. 21. ISBN 9780812929287.
- ^ E.g. Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1977)
- ^ Alexander v. Sandoval, 532 U.S. 275 (2001), https://www.law.cornell.edu/supct/html/99-1908.ZS.html
- ^ "Civil Rights Division Home Page". Archived from the original on July 16, 2015. Retrieved August 12, 2015.
- ^ Smith v. City of Jackson, Mississippi, 544 U.S. 228 (2005), https://www.law.cornell.edu/supct/html/03-1160.ZS.html
- ^ "Archived copy" (PDF). Archived from the original (PDF) on May 24, 2017. Retrieved June 27, 2017.
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