Actions that negatively affect individuals in particular groups as defined by race, color, religion, sex, or national origin are referred to as having a disparate or disproportionate impact. The concept of disparate impact flows from Title VII of the Civil Rights Act of 1964 and the large amount of litigation it fostered. Much of the litigation surrounding disparate impact is based on statistical proof of the discriminatory effects of employment practices.
In Griggs v. Duke Power Company (1971), the U.S. Supreme Court explained that the purpose of Title VII was to remove unnecessary barriers that inadvertently discriminated on the basis of impermissible classifications. In Griggs, the Court held that facially neutral employment practices may be included under Title VII if they led to the disproportionate representation of individuals based on race, ethnicity, or gender. The Court also ruled that actions that had an adverse effect on employees in protected classes, even if there was no intent to harm certain groups, was a violation of the Civil Rights Act of 1964. Yet, in 1976 the Court held in Washington v. Davis, a dispute over the hiring of police officers, that discriminatory intent must also be proven in order for a plaintiff or plaintiffs to prove a constitutional violation.
Under the law of disparate impact, parties claiming that comparable or similar actions have led to an unconstitutional discriminatory effect must show that the actions disproportionately caused them harm. As such, a discriminatory effect within a disparate impact case stems from what is referred to as facially neutral policy. This simply means that there was no overt, deliberate intent to discriminate in a policy, but the policy’s implementation had a discriminatory effect on individuals based on race, ethnicity, or gender.
Disparate impact cases are based on statistical data that demonstrate the extent to which the implemented neutral policy negatively impacted a particular demographic group, E. W. Shoben has pointed out. The results of this negative impact are referred to as adverse impact. Adverse impact is a substantially different rate of selection in hiring, promotion, or other employment decisions that may disadvantage members of a particular racial, ethnic, or gender group, Shoben notes. A selection rate for any group that is less than 80% is deemed adverse impact.
Insofar as disparate impact analysis is not a heavily used theory of discrimination, many questions remain unanswered. For example, it is unclear how disparate impact theory can be used to help institutions, whether in K–12 or higher education settings, to prevent or deter adverse impact on protected groups. Further, even though disparate impact theory has not been applied often to K–12 or higher education, it does reveal great promise for addressing discrimination and inequities in the educational arena, both for employees and students.
- Hall, K. L. (1992). The Oxford companion to the Supreme Court of the United States. New York: Oxford University Press.
- Perez, M. G. (2004). Fair and facially neutral higher educational admissions through disparate impact analysis. Michigan Journal of Race and Law, 9, 467–502.
- Shoben, E. W. (1977a). Differential pass-fail rates in employment testing: Statistical proof under Title VII. Harvard Law Review, 91, 793–813.
- Shoben, E. W. (1977b). Probing the discriminatory effects of employee selection procedures with disparate impact analysis under Title VII. Texas Law Review, 73, 677–710.
- Shoben. E. W. (1979). In defense of disparate impact analysis under Title VII: A reply to Dr. Cohn. Indiana Law Review, 55, 515–536.
- Shoben, E. W. (1980). Compound discrimination: The interaction of race and sex in employment discrimination. New York Law Review, 55, 793–835.
- Shoben, E. W. (2004). Disparate impact theory in employment discrimination: What’s Griggs still good for? What not? Brandeis Law Journal, 42, 597–622.
- Griggs v. Duke Power Company, 401 U.S. 424 (1971).
- Washington v. Davis, 426 U.S. 229 (1976).