Disparate Impact and the Unity of Equality Law

70 Pages Posted: 10 Feb 2016 Last revised: 3 Dec 2020

See all articles by Noah Zatz

Noah Zatz

University of California, Los Angeles (UCLA) - School of Law

Date Written: 2017


This Article offers a new theory of disparate impact liability. This theory emerges from and advances a unified account of employment discrimination law as a whole. Disparate impact claims target the same distinctive injury as do disparate treatment and nonaccommodation claims: suffering workplace harm because of one’s race, sex, disability, or other protected status. This injury of “status causation” offends basic commitments to equality and individual freedom. Focusing on status causation also draws directly from statutory text emphasizing causation and individual harm, unlike more familiar approaches centered on employers’ decision-making processes or social hierarchy between groups.

A disparate impact claim’s statistical comparison of group outcomes provides evidence that individuals have suffered status causation. Group outcomes are constructed by aggregating individual outcomes. Disparities between group outcomes can emerge only if many individual group members suffer harm because of their protected status (status causation). But not all group members suffer this injury; it is spread unevenly within the group. The statistical evidence demonstrates that some individuals suffered discrimination’s injury, but it does not identify which individuals.

Highlighting intra-group variation in injury explains fundamental but otherwise perplexing features of disparate impact doctrine. Refusing to treat group members as interchangeable explains the structure of the prima facie case, including its rejection of any “bottom line” defense based on aggregate workforce composition. Also noted are other significant implications for remedies and for the relationship between employment discrimination law and redistributive social policy. In each case, the focus is on those individuals who have suffered status causation, not necessarily a group as a whole.

Keywords: Employment discrimination law, disparate impact liability, antidiscrimination jurisprudence

Suggested Citation

Zatz, Noah, Disparate Impact and the Unity of Equality Law (2017). 97 Boston University Law Review 1357 (2017), UCLA School of Law Research Paper No. 16-06, Available at SSRN: https://ssrn.com/abstract=2730845.

Noah Zatz (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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