'Disparate Impact' and 'Indirect Discrimination’: Assessing Responses to Systemic Discrimination in the U.S. and the E.U.

Abstract

The paper analyses the differences in the understanding and application of the idea of disparate impact, which originated in the U.S. and is being applied within the E.U. As a legal transplant, the idea of disparate impact operates differently in the new legal context. The operation of the idea is affected by the wider philosophy and the goals of Employment Discrimination Law in the U.S. and the E.U. Although the U.S. legal order is primarily oriented towards integrating employees into the labor market, the EU conception encourages the member states to engage in wider redistributive policies concerning salaries and welfare benefits. In the US the doctrine of disparate impact operates as a limit to the employment at will doctrine dominant in US Employment Law, whereas in the EU the doctrine has served as expanding the benefits afforded to employees as an indispensable element of the free movement of persons.

Keywords: disparate impact, indirect discrimination, U.S., E.U., Court of Justice of the European Union