Re-reviving Disparate Impact

Abstract:     
Rejecting the Supreme Court's attempt in Wards Cove to cut back the disparate impact theory of liability under Title VII, Congress passed the Civil Rights Act of 1991 codifying the doctrine. Although that Act was the culmination of a vibrant national debate, there has been surprisingly little implementation of the doctrine since its passage. During the same period, however, there has been increasing scholarly consensus both that discrimination remains an important national problem and that the legal tools to address it are wholly inadequate. While the 1991 resurrection of disparate impact might have seemed the answer, the attention of the commentators returned instead to disparate impact's sibling, disparate treatment liability.

On the disparate treatment front, there has been change but perhaps not progress. After thirty years of wrestling with the McDonnell Douglas Corp. v. Green grand experiment with proof structures for proving intentional discrimination, the Court's 2003 decision in Desert Palace, Inc. v. Costa circled back to the obvious and simply asked whether there was "sufficient evidence" that a prohibited ground was "a motivating factor" for an employment practice. While Desert Palace may make proof structures obsolete, it is doubtful that its "sufficient evidence" approach will result in more verdicts for victims of discrimination. The same judges whose summary judgments and judgments as a matter of law have for years reflected profound skepticism about the prevalence of discrimination in the workplace will continue to keep the gates, and juries may also be reluctant to find violations because of common perceptions that discrimination is largely a thing of the past.

The time, then, is ripe for a reconsideration of the question of discrimination in an effort to define the proper role of the two theories of liability - disparate treatment and disparate impact. This reassessment is in large part responsive to the new wave of research by scholars such as Linda Krieger and Tristin Green. Speaking in terms of cognitive bias and workplace dynamics they argue that discrimination is both more pervasive and less conscious today than was true when Title VII was enacted in 1964. While these commentators have rejected a disparate impact solution in favor of modifying disparate treatment, the history of that paradigm hardly justifies optimism.

Consequently, this Article argues for expanded use of disparate impact as a tool to address both old- and new-fashioned discrimination and develops the justifications and mechanisms for so doing. While a more robust use of disparate impact forfeits the moral high ground that validates the core disparate treatment prohibition, it argues that those heights have already been eroded by scholarship such as Krieger's and Green's. Further, since disparate impact functions not as an absolute prohibition but rather as a means of balancing adverse effect against business justifications, it is a more attractive avenue to address present-day "subtle discrimination" than radically expanding the disparate treatment model.

Number of Pages in PDF File: 67

Keywords: disparate impact, disparate treatment, employment discrimination, Title VII, McDonnell Douglas, Desert Palace, Costa, cognitive, workplace dynamics, workplace cuture, subtle discrimination

working papers series