Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal

Abstract

Title VII disparate impact liability makes almost everything presumptively illegal: It gives the federal bureaucracy extraordinary discretionary power. But what does it do to the rule of law? And who benefits?
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In Griggs v. Duke Power Co. (1971), the Supreme Court held that Title VII of the Civil Rights Act of 1964 went far beyond prohibiting intentional discrimination on the basis of race, color, religion, sex or national origin. According to the Court, it also presumptively outlawed job actions that have a “disparate impact,” regardless of whether the employer had an intent to discriminate.

The evidence that this was a misinterpretation of both the text and Congressional intent is overwhelming. Up until 1991, Griggs would have been an excellent candidate for an outright and explicit overruling. But the Civil Rights Act of 1991’s backhanded recognition of the disparate impact cause of action makes that more difficult than it otherwise might be.

This article discusses various ways in which disparate impact liability has been bad policy and various arguments for its unconstitutionality.

Keywords: Title VII, Civil Rights Act of 1964, disparate impact, criminal background, EEOC, Griggs, Ricci, equal protection, due process, civil rights, employment discrimination, discretion, Civil Rights Act of 1991

JEL Classification: K00, K10