Toward Positive Equality: Taking the Disparate Impact Out of Disparate Impact Theory

Abstract

Employment discrimination doctrine has become so dependent upon the concept of social group membership that group consciousness is generally viewed as an essential and defining feature of antidiscrimination law. Just over a decade ago, however, Professor Mark Kelman launched an investigation into whether and why antidiscrimination law must or should make reference to group status. This article extends that investigation into the disparate impact arena by exploring the proper role, if any, that group consciousness should play in legal efforts to ensure that facially neutral employment practices are demonstrably merit-based. This analysis reveals the value in considering a practice-conscious rather than a group-conscious approach to legal regulation of workplace practices. Rather than tailoring legal protection by allowing only members of certain groups to challenge the business necessity of any exclusionary employment practice, legal protection could instead be tailored by allowing any worker to challenge the business necessity of only certain suspect practices. This article uses Kelman's insights to help identify the subset of practices that should be subject to such universal challenge, and it analyzes the benefits and shortcomings of a practice-conscious approach to advancing a norm of positive equality in the workplace.

Keywords: employment discrimination, antidiscrimination law, disparate impact, social groups, group-conscious approach, practice-conscious approach, Mark Kelman, positive equality