Also known as:discriminatory effect standard · discriminatory effects standards · disparate impact standard · disparate impact
Written by attorneys · grounded in primary & secondary sources — see below
An evidentiary framework that establishes liability for discrimination under statutes such as the Fair Housing Act when a facially neutral practice causes a disproportionate adverse effect on a protected class. The framework requires the plaintiff to make a prima facie showing of discriminatory effect, after which the defendant may rebut by proving a legitimate nondiscriminatory justification, and the plaintiff may then demonstrate that the justification is pretextual or that a less discriminatory alternative exists.
Sources & Authorities
How it applies
Common Examples
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Veterans Hiring Preference
The state civil service commission adopts a facially neutral rule granting hiring preferences to veterans for mid-level administrative posts. Deanna Davenport, a female applicant with strong qualifications, is passed over in favor of less qualified male veterans. She sues under the Equal Protection Clause alleging gender discrimination based solely on the rule's disproportionate impact on women. The court rejects the claim because the preference was adopted to benefit veterans rather than to disadvantage women.
Zoning Restriction Challenge
The Town of Huntington enacts a zoning ordinance that effectively blocks construction of multifamily housing in predominantly white neighborhoods. Dwight Dorsey and other minority residents, represented by the NAACP, show that the ordinance predictably concentrates affordable units in minority areas and produces a racially disparate impact. The court finds a prima facie case of discriminatory effect under the Fair Housing Act even without proof of discriminatory intent.
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Cases
Casebooks
Huntington Branch, NAACP v. Town of Huntington844 F.2d 926, 937 (2d Cir.), aff’d per curiam, 488 U.S. 15 (1988)
Partnership Promotion Decision
Price Waterhouse denies partnership to Dolores Diaz after partners cite both her aggressive demeanor and her gender as reasons for the decision. Diaz proves that sex was a substantial factor in the denial. The court shifts the burden to the firm to show it would have reached the same decision absent the discriminatory motive.
Price Waterhouse v. Hopkins490 U.S. 22 (1989)
Class Certification Denial
Female employees at Wal-Mart Stores, Inc. seek to certify a nationwide class alleging that subjective promotion and pay practices produce a discriminatory effect on women. Deborah Dunn presents statistical evidence of gender disparities but cannot show a common policy or practice affecting all class members. The court denies certification because the discriminatory effects standard requires proof of a uniform employment practice that can be challenged on a classwide basis.
Wal-Mart Stores, Inc. v. Dukes564 U.S. 338 (2011)
Common questions
Frequently Asked
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Does proof of discriminatory effect alone establish an equal protection violation?+
No. The Equal Protection Clause requires proof that the government adopted or maintained the challenged policy at least in part because of its adverse effect on a protected class. Statistical disparities without evidence of discriminatory purpose are insufficient.
What is the burden-shifting framework under the FHA discriminatory effects standard?+
The plaintiff first must prove that a challenged practice caused or predictably will cause a discriminatory effect. The defendant may then rebut by proving the practice furthers a legitimate nondiscriminatory interest. The plaintiff may respond by showing the interest is pretextual or that a less discriminatory alternative exists.
Can a facially neutral veterans preference violate equal protection because it disadvantages women?+
No. A law granting hiring preferences to veterans does not violate equal protection merely because it disproportionately disadvantages women when the purpose is to benefit veterans rather than to discriminate against women.
490 U.S. 22 (1989)Constitutional Law
…7213 (1964). Last Term, in Watson v. Fort Worth Bank & Trust , 487 U. S. 977 (1988), the Court unanimously concluded that the disparate impact analysis first enunciated in Griggs v. Duke Power Co. , 401 U. S. 424 (1971), should be extended to subjective or discretionary selection processes. At the same time a plurality of the…