When 'the Evil Day' Comes, Will Title VII's Disparate Impact Provision be Narrowly Tailored to Survive an Equal Protection Clause Challenge?

Abstract

"The road to hell is paved with good intentions." Employers must be careful about the intentional and unintentional effect of their employment practices, even when acting with good motive. Title VII’s disparate impact provision holds employers liable for employment practices that cause an adverse impact on racial groups, even when the employment practice applies equally to all groups and was not implemented to disadvantage a particular group. A prima facie case of disparate impact can arise solely based on numbers - a comparison between the rate at which one racial group passes a test or is selected for hiring or promotion as compared to rate of other racial groups. The disparate impact provision raises an Equal Protection Clause issue because it encourages employers to make race-conscious employment decisions to avoid disparate impact liability. This Article takes on the difficult question that the Supreme Court avoided in Ricci v. DeStefano: Does the provision violate the Equal Protection Clause? Evaluating the disparate impact provision under the rigors of strict scrutiny, this Article examines if the provision is narrowly tailored to achieve the possible compelling interests of remedying past discrimination, smoking out discrimination, increasing diversity, providing role models, meeting an operational need, or removing barriers to equal employment opportunities. After considering whether the disparate impact provision operates as a rigid quota, affords flexibility or individualized decisions, is narrow in scope and duration, applies to white males, and has available race-neutral alternatives, this Article concludes that the provision fails narrow tailoring and is likely unconstitutional.

Keywords: eighty percent rule, four fifths rule, 80%, Bakke, Grutter, Gratz, Sheet Metal, Paradise, overinclusive, underinclusive, sunset, Civil Rights Act, section 703, critical mass, diversity, Teal, McDonald, Santa Fe Trail, bottom line, statistic, probability of error, Type I, Type II

JEL Classification: D63, J15, J21, J23, K31, J40, J71, J70, J78, J79