The theory of disparate impact, also known as “adverse impact,” allows challenges to employment or educational practices that are nondiscriminatory on their face but that have a disproportionately negative effect on members of legally protected groups. When the U.S. Supreme Court first recognized the theory, it was hailed as a breakthrough for civil rights. However, civil rights advocates have been disappointed as federal courts have limited how and when plaintiffs may file disparate impact claims. Disparate impact suits have become less successful over time.
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.
In Ward’s Cove Packing Company v. Antonio (1989), the Supreme Court imposed some of its most significant limitations on the theory of disparate impact. The Court switched the burden of proof to plaintiffs, requiring that they demonstrate that employers’ practices causing disparate impacts were not business necessities. Moreover, the Court indicated that plaintiffs had the burden of identifying which specific business practices generated the disparate impacts and that employers had refused to adopt alternative practice that met their needs.
Congress responded to Ward’s Cove Packing Company in the Civil Rights Act of 1991, providing a partial victory to proponents of the theory of disparate impact. On the one hand, the statute finally codified the theory in the Title VII context and essentially superseded the Court’s opinion that plaintiffs had the ultimate burden of proving a selection practice was not a business necessity. On the other hand, the Civil Rights Act of 1991 required plaintiffs to identify with specificity the challenged business practices except for a very narrow exception. The act also failed to clarify how to evaluate whether disparate impacts exist, the adequacy of employers’ stated business necessities, and what plaintiffs needed to show in terms of alternative practices with lesser disparate impacts. The resulting uncertainty has made it difficult for plaintiffs to prevail in disparate impact cases.
Expansion of Disparate Impact Theory to Other Statutes
The judiciary has expanded the theory of disparate impact beyond Title VII to other federal, nondiscrimination statutes. Title VI prohibits discrimination on the basis of race to any institution receiving as little as one dollar in federal funds. The U.S. Department of Education promulgated Title VI regulations that prohibit “criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.” In a fractured decision, the Supreme Court, in Guardians Association v. Civil Service Commission of the City of New York (1983), reached the anomalous conclusion that while Title VI itself required discriminatory intent, the federal regulations prohibiting discriminatory effects were valid.
Title IX of the Education Amendments of 1972, a sister statute to Title VI, prohibits discrimination on the basis of sex at institutions that receive federal funds. For example, Title IX prohibits the use of gender as a criterion for college admissions if use of this criterion has a disparate impact, unless the criterion is shown to predict success and no alternative criteria are available.
Disability laws also prohibit disparate impacts. Even so, plaintiffs have rarely prevailed, because the accommodation process examines each person individually, while the theory of disparate impact is designed to look at the effects on a group. In Alexander v. Choate (1985), the Supreme Court assumed but did not resolve whether Section 504 of the Rehabilitation Act of 1973 “reaches at least some conduct that has an unjustifiable disparate impact upon the handicapped.” A similar statute, the Americans with Disabilities Act, prohibits the use of “standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability.”
Antidiscrimination statutes including Title VI and Title IX can be enforced administratively when federal agencies threaten to deny federal funds from institutions for noncompliance. Yet in Alexander v. Sandoval (2001), the Supreme Court closed the door on disparate suits brought by individuals under Title VI, ruling that although the agency regulations were valid, no private right of action existed for individuals to enforce them. Sandoval’s precedent has been applied to Title IX because of its similarity in wording to Title VI. Still, the Sandoval application to Section 504 is uncertain in light of the Court’s earlier judgment in Alexander v Choate.
The Supreme Court has determined that disparate impact claims can be brought under the Age Discrimination in Employment Act (ADEA), but it imposed significant limitations on those suits. In Smith v. City of Jackson (2005), the Court pointed out that when age is an issue in personnel actions, employers do not need to demonstrate the existence of business necessities. Instead, the Court was satisfied that employers could demonstrate that disparate impacts were caused simply by a “reasonable factor other than age,” the less demanding standard allowed by the ADEA. The Court added that future ADEA claims should be analyzed under the restrictive guidelines established in Ward’s Cove, because the Civil Rights Act of 1991 had overruled Ward’s Cove with respect to Title VII but not the ADEA.
Application of Disparate Impact to Higher Education
Only a small number of disparate impact claims have been filed against institutions of higher education, and of these, few have been successful. In one notable case, a federal trial court upheld a university’s requirement that applicants had to have had a doctoral degree in order to obtain positions as assistant professors, even though doing so had a disparate impact on African Americans. In Scott v. University of Delaware (1978), the court explained that the experience, skills, and knowledge required to obtain a doctoral were reasonably related to the important academic functions of scholarship and teaching graduate students. In another case, Cureton v. NCAA (1999), the Third Circuit observed that the NCAA could not be sued on the ground that its minimum standardized test scores had an unjustified disparate impact on African American student athletes in violation of Title VI. Even one of the few victories for a plaintiff, Leftwich v. Harris-Stowe State College (1983), now has limited value as precedent. The Eighth Circuit, in a discrimination case, established a tough business necessity standard, but the Supreme Court’s judgment in City of Jackson eliminated the need to show business necessity in age discrimination cases.
Future of Disparate Impact Theory
The prospects for future disparate impact litigation appear bleak. Legal scholar Michael Selmi’s empirical analysis of almost 300 federal appellate and trial court disparate impact cases demonstrated that plaintiffs prevailed less than 20% of the time, a rate far lower than that in other types of employment discrimination cases. Further, Selmi’s analysis showed that plaintiffs have been less successful over time, as courts have further limited the use of the disparate impact theory.
In the context of higher education, one legal commentator suggests that the best hope for the disparate impact theory is voluntary compliance efforts by colleges rather than successful disparate impact litigation. Another commentator on higher education offered the opinion that City of Jackson means that the application of disparate impact theory in age discrimination cases will be “limited and remote.” Even so, the theory of disparate impact is still frequently discussed in the legal literature, but it appears unlikely that it will play a significant role in future higher education litigation, unless courts become more receptive to its application.
D. Frank Vinik
- Beckham, J. (2006). Disparate impact analysis under the ADEA: A standard of ‘reasonableness’ for college and university employees. Education Law Reporter, 201, 409.
- Hart, M. (2007). Disparate impact discrimination: The limits of litigation, the possibilities for internal compliance. Journal of College & University Law, 33, 547–569.
- Selmi, M. (2006). Was the disparate impact theory a mistake? UCLA Law Review, 53, 701–733.
- Age Discrimination in Employment Act, Pub. L. No. 90-202 (1967).
- Alexander v. Choate, 469 U.S. 287 (1985).
- Alexander v. Sandoval, 532 U.S. 275 (2001).
- Americans with Disabilities Act, Pub. L. No. 101-336 (1990).
- Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999).
- Dothard v. Rawlinson, 433 U.S. 321 (1977).
- Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. (1972).
- Griggs v. Duke Power Company, 401 U.S. 424 (1971).
- Guardians Association v. Civil Service Commission of the City of New York, 463 U.S. 582 (1983).
- Leftwich v. Harris-Stowe State College, 702 F.2d 831 (8th Cir. 1983).
- Rehabilitation Act of 1973, Section 504 29 U.S.C. §§ 794 et seq.
- Scott v. University of Delaware, 455 F. Supp. 1102 (D. Del. 1978).
- Smith v. City of Jackson, 544 U.S. 228 (2005).
- Ward’s Cove Packing Company v. Antonio, 490 U.S. 642 (1989).
- Washington v. Davis, 426 U.S. 229 (1976).