The World Turned Upside Down?: Disparate Impact Claims by White Males

Abstract

The disparate impact theory of discrimination under Title VII has been in existence for more than three decades, and its revival was the centerpiece of the highly contentious Civil Rights Act of 1991. Nevertheless, one seemingly obvious question has remained unanswered, indeed almost completely unaddressed, by courts and commentators. May whites and males utilize the theory, or is it limited to African Americans (and other racial minorities) and women? The sweep of disparate impact has important theoretical implications. It also has potentially significant practical applications, including the possibility that older white males will claim disparate impact on race or gender grounds as a way to end-run the increasing judicial hostility to disparate impact claims under the Age Discrimination in Employment Act.

This Article concludes that applying disparate impact beyond minorities and women is profoundly ahistorical and inconsistent with the theoretic underpinnings of the theory. It is also inconsistent with a basic policy that the courts have interpolated into the antidiscrimination statutes - employer prerogatives are to be left untouched to the maximum extent consistent with the remedial goals of the statute. Further, the language and legislative history of Title VII, as amended by the Civil Rights Act of 1991, is consistent with limiting the theory to minorities and women, although neither compels that result.

Despite this analysis, the Article concludes that limiting disparate impact to minorities and women cannot survive equal protection analysis. Accordingly, Title VII should be read to avoid the constitutional question by interpreting disparate impact as available to all races and both sexes. The resultant expansion of disparate impact will generate serious repercussions that the courts will have to address, including the contraction of employer prerogatives. One potential consequence of such extension will be a tendency of the courts to water down the theory (even with respect to its primary beneficiaries - minorities and women) in order to avoid too great an intrusion on those prerogatives.

Keywords: disparate impact, discrimination, equal protection, African American, white, male, racial minorities, age discrimination, reverse discrimination, women