Is the Road to Disparate Impact Paved With Good Intentions? -- Stuck on State of Mind in Antidiscrimination Law
67 Pages Posted: 18 Sep 2007
The disparate impact theory of liability in antidiscrimination law is in its fourth decade of doctrinal development, but the theory remains misunderstood, mislabeled, and misused. Despite the fact that the effects-based theory emerged as a method of proof theoretically unconcerned with the concept of intent - whether of the "good" or "bad" variety - all of the stakeholders using disparate impact theory have remained stuck on state of mind. This Article examines the particular way in which the focus on the defendant's state of mind in disparate impact cases has helped undermine the theory, despite the belief of many theorists that a thorough grounding in intent may be necessary to ensure the theory's survival. The Article suggests that recent events and more modern conceptions of evil make it possible for us to look past "good intentions," to revisit our notions of culpability and fault, and to reinvigorate a disparate impact theory focused solely on effects.
JEL Classification: J71
Suggested Citation: Suggested Citation