Disparate Impact: Looking Past the Desert Palace Mirage
64 Pages Posted: 24 Jun 2005
The state of employment discrimination can be easily summarized. In the courts, plaintiffs are losing almost all of the cases they file, except in a few areas such as sexual harassment. In the law reviews, scholars find discrimination more pervasive than ever -- but only when they define "discrimination" contrary to the intuitions of judges and juries. In terms of doctrine, the Supreme Court may be dismantling formal proof structures for individual disparate cases treatment in favor of a "sufficient evidence" test, but the result will be to accord judges and juries, who believe discrimination is largely a thing of the past, as much freedom as under prior doctrine to find against plaintiffs.
In short, employment discrimination is in a crisis. That crisis is, ironically, manifested most dramatically by the new wave of bias scholarship. Speaking of "cognitive bias" and workplace dynamics and cultures, scholars argue that discrimination is both more pervasive and less conscious today than was the case when Title VII was enacted in 1964. While this may well be true, the proposals of these scholars to modify disparate treatment law to deal with this phenomenon are not justified by the unsatisfactory history of that paradigm.
This article details the failings of disparate treatment, concluding that there is no likelihood that the Supreme Court's 2003 decision in Desert Palace, Inc. v. Costa, whatever its effect on formal proof structures, will result in more verdicts for victims of discrimination. The same judges whose summary judgments and judgments as a matter of law have for years reflected profound skepticism about the prevalence of discrimination in the workplace will continue to keep the gates, and juries will also continue to be reluctant to find violations because of common perceptions that discrimination is largely a thing of the past. Although it may seem counterintuitive, this Article argues for expanded use of disparate impact as a tool to address both old- and new-fashioned discrimination and develops the justifications and mechanisms for so doing. While a more robust use of disparate impact forfeits the moral high ground that validates the core disparate treatment prohibition, this Article argues that those heights have already been eroded by cognitive bias. Further, since disparate impact functions not an absolute prohibition but rather as a means of balancing adverse effect against business justifications, it is a more attractive avenue for a conservative judiciary to address present-day "subtle discrimination" than radically expanding the disparate treatment model.
The article explains why, notwithstanding shortcomings and limitations, disparate impact is the avenue more likely to yield substantial success in future discrimination cases, and, in fact, align the law more closely with the science.
Keywords: disparate impact, disparate treatment, employment discrimination, Title VII, McDonnell Douglas, Desert Palace, Costa, cognitive, workplace dynamics, workplace cuture, subtle discrimination
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