Disparate Impact Abroad
A Nation of Widening Opportunities? The Civil Rights Act at 50, Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press, 2014, Forthcoming
21 Pages Posted: 13 Mar 2014 Last revised: 9 Apr 2014
Date Written: March 12, 2014
This paper traces and evaluates the trajectory of Title VII doctrine in Europe. The Civil Rights Act of 1964 prohibited discrimination in various realms of social and economic life. Title VII, proscribing discrimination in employment, gave rise to the Civil Rights Act’s largest body of jurisprudence, in which courts have struggled to define the concept of discrimination. Title VII doctrine has had tremendous influence not only on the American workplace, but on antidiscrimination law throughout the world.
Antidiscrimination laws in several European jurisdictions have borrowed from U.S. Title VII cases to develop a body of equality law that appears more robust than its American cousins. Griggs v. Duke Power Company, the U.S. Supreme Court case that articulated the disparate impact theory of discrimination, has been cited by English courts, the European Court of Justice, and the European Court of Human Rights. Griggs appears to have shaped the European concept of “indirect” discrimination. At the same time, Griggs converged with other strands of European law developed by the European Court of Justice to interpret the non-discrimination guarantees necessary to promote European integration through the free movement of labor. This paper compares the evolution of disparate impact in the United States and that of “indirect” discrimination in several European jurisdictions. The comparison illuminates a major question that has plagued U.S. courts since Griggs: Does disparate impact liability make sense independently of imposing positive duties towards substantive collective goals on public and private institutions?
Keywords: Title VII, Civil Rights Act, discrimination, comparative law, disparate impact, European Court of Justice, European Court of Human Rights, transnational law
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