Disparate Impact

Evolution of Disparate Impact Theory

The theory of disparate impact arose out of the Supreme Court's landmark decision in Griggs v. Duke Power Company (1971), which challenged the company's requirement that employees pass an intelligence test and complete their high school diplomas to transfer out of the lowest-paying department at a power plant. Prior to 1965, African Americans had been limited to the lowest paying department and were not allowed to transfer out. When the company officially abandoned the limitation on African Americans, it instituted the high school diploma requirement for transfers.

In Griggs, the Supreme Court held that in analyzing employment practices that cause a disparate impact, “The touchstone is business necessity. If an employment practice which operates to exclude [members of a protected group] cannot be shown to be related to job performance, the practice is prohibited.” The Court found that the two requirements were not related to job performance, noting that many White employees who had not graduated from high school were performing well in the higher-paying departments. Further, the Court thought that the intelligence test, on which African Americans tended not to perform as well as Whites, did not bear a demonstrable relationship to any of the jobs for which it was used.

The first case that significantly limited the disparate impact theory was Washington v. Davis (1976), in which the Supreme Court held that the theory of disparate impact did not apply to constitutional claims unless plaintiffs could show that the facially neutral standards were adopted with discriminatory intent. The court reasoned that Title VII of the Civil Rights Act of 1964 “involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed.” In addition, the court expressed its concern that extending the theory of disparate impact to constitutional claims would open the floodgates and “would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.”

The following year, the Supreme Court, in Dothard v. Rawlinson (1977), addressed the “bona fide occupational qualification” exception in sex discrimination cases. Here a class of women challenged a state's height and weight requirements for prison guards at male correctional facilities. The requirements excluded approximately 40% of all women but only 1% of men. The Court decided that the disparate impact was justifiable, because strength and size constituted bona fide occupational requirements for a job that required guards to maintain order in prisons.

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