Introduction: What is Disparate Impact? What is the Law and How Can it be Used?
In the United States, we struggle with a deep divide between cultures. Racism and inequality underpin these divides and shape our lives in complex ways that are often outside of our control. For this reason, discrimination laws are an important way to counterbalance these forces. Title VII of the Civil Rights Act of 1964 is a landmark piece of legislation that prohibits discrimination based on race, color, religion, national origin, or sex. It was amended in 1972 to include protections for individuals with disabilities and in 1991 to include those discriminated against because they are pregnant. In addition to proscribing hiring practices and providing remedies for victims of discrimination, the Civil Rights Act prohibits “disparate impact”: that is, employers who make hiring decisions in a way that disproportionately excludes people of certain protected classes. When an employer makes a hiring decision based on an illegitimate criterion such as race or disability, the employer has engaged in disparate impact discrimination. The employer – and his or her corporate labor counsel (generally) – must prove that the legitimate factor(s) used to justify the exclusion of protected classes is job related and consistent with business necessity. In other words, they have to show that the reason for their hiring decision was a real one and that it was a legitimate criterion for making the decision. Disparate impact can be incredibly difficult to prove. When an employer discriminates in a way that disproportionately excludes protected classes, these laws are designed to let these economically vulnerable groups into jobs. The law says that if a business has otherwise acted in good faith, it must be allowed to keep its hiring practices intact.
Path of Equality – The First Step to Racial Justice in America
In the United States, we struggle with a deep divide between cultures. Racism and inequality underpin these divides and shape our lives in complex ways that are often outside of our control. For this reason, discrimination laws are an important way to counterbalance these forces. Title VII of the Civil Rights Act of 1964 is a landmark piece of legislation that prohibits discrimination based on race, color, religion, national origin, or sex. It was amended in 1972 to include protections for individuals with disabilities and in 1991 to include those discriminated against because they are pregnant. In addition to proscribing hiring practices and providing remedies, Title VII also prohibits racial segregation in schools, public facilities, and other areas. A decade after the passage of Title VII there was a push for the Equal Employment Opportunity Commission (EEOC) to prohibit discrimination based on race in employment. The EEOC responded with a regulation prohibiting such discrimination as long as hiring decisions are based on job-related criteria like education and skills. This is called disparate impact, not disparate treatment.
When the EEOC issued this rule, there was a heated debate about the merits of such proscription. Conservatives argued that it would render many of the laws that prohibit discrimination because of race or sex unconstitutional. They feared that the government’s overreach and enforcement could deny an individual their rights or rights defended by the laws they helped write and secured in Congress. Supporters of a proscription again cited large disparities between whites and people of color in employment and argued that anti-discrimination laws are an effective way to eradicate inequality.
After decades of litigation and extension of the proscription, the EEOC finally withdrew its regulation in 2013. This article examines the history and implications of this decision. The authors also examine what it might mean for future employment discrimination law.
NII (National Indigenous Institute) versus.United States, __ F.3d __ (3rd Cir. 2015)
How We Got Here – 20th Century Racial Discrimination & its Effect on the Law
HISTORY OF DISPARATE IMPACTThe Civil Rights Act of 1964 did not explicitly speak to the issue of disparate impact; it was only 10 years after the Act was passed when the Supreme Court first addressed disparate impact in a landmark decision. In Griggs v. Duke Power Company, 401 U.S. 424 (1971), the Court held that Title VII of the Civil Rights Act prohibits conduct that has a disproportionately adverse effect on members of a particular race, such as grading systems which are designed in part to accommodate or penalize certain races without regard to individual differences and qualifications…
The Way Forward – Institutionalizing Racial Impact & Reducing Legal Burdens for Communities
The Civil Rights Act of 1964 did not explicitly speak to the issue of disparate impact; it was only in 1968 that the law was amended to provide explicit protections. Section 202 of Title VII states: “It shall be an unlawful employment practice for an employer . . . to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” The law only protected individuals from being discriminated against “because of” their race. This meant that racial minorities could be discriminated against, even though the law did not specifically state it. It was the Civil Rights Act of 1968 that provided a safe harbor for voluntary affirmative action plans. The legislation stated that any classifications or practices “which have the effect of subjecting . . . individuals to discrimination [and] which are not job related” were prohibited.
In addition, Title VII required employers to develop “record keeping and reporting systems. . . to monitor their compliance with the nondiscrimination standards.” However, due to the way that the law was written, while employers were required to report and keep records of their discriminatory practices in hiring and promotion, they were not fined or punished if it was proven that they were ignoring these rules and laws.