Also known as: discriminatory impacts · disparate impact
Written by attorneys · grounded in primary & secondary sources — see below
A statistical disparity in outcomes produced by a facially neutral law or policy. Under the Equal Protection Clause, such a disparity does not establish unconstitutional discrimination absent proof of discriminatory purpose.
Destiny Davis scored highest on a state civil service exam but lost the position to a male veteran with lower scores. The state maintained the preference to reward military service. Davis sued claiming gender discrimination. The court upheld the rule because the preference was adopted to benefit veterans rather than to exclude women.
A prosecutor struck every Black venire member in Damian Decker's trial. Decker offered statistical data showing the pattern across similar cases. The court required Decker to produce evidence that the strikes in his own case were motivated by race rather than neutral reasons.
Devon Drake received a death sentence in a case where data showed Black defendants were far more likely to receive capital punishment than white defendants. Drake presented only the statewide statistics. The court denied relief because the numbers alone did not prove purposeful discrimination in his individual sentencing.
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Dominion Capital fired Diane Dawson after she announced her transition. The company retained an otherwise identical employee who had been identified as female at birth. Dawson showed that her birth-assigned sex was a but-for cause of the discharge decision.
Duarte Shipping sought a permit to expand a facility in a minority neighborhood. City officials cited traffic concerns. Evidence showed the same concerns had not blocked similar projects in white neighborhoods. The court examined whether the stated reasons masked a purpose to disadvantage the minority community.
Dover Bank discarded promotion exam results after learning that minority candidates had passed at markedly lower rates. The bank feared a disparate-impact lawsuit. White candidates who had scored highest sued. The court held that discarding the results without a strong basis in evidence of illegality violated Title VII.
No. The Equal Protection Clause requires proof of discriminatory purpose in addition to impact. Statistical disparities alone are insufficient to show that government action was undertaken because of race or sex rather than in spite of it.
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Statistical evidence may support an inference of purpose when the disparity is so stark that it is difficult to explain on non-discriminatory grounds, such as total exclusion of a racial group from jury venires.
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The Fifteenth Amendment likewise demands purposeful racial discrimination. Awareness that a facially neutral rule will disproportionately affect minority voters does not by itself establish a violation.
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Courts examine the historical background of the decision, the sequence of events leading to it, departures from normal procedures, and contemporary statements by decision makers.
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…racial discrimination . . . create the risk of purposeful discrimination," Congress could "prohibit changes that have a discriminatory impact" in those jurisdictions). Remedial legislation under § 5 "should be adapted to the mischief and wrong which the [Fourteenth] [A]mendment was intended to provide against." Civil Rights…