Also known as: disparate impact · disparate impact theory · disparate impact doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A method of attempting to prove discrimination by showing that a facially neutral policy or practice produces a statistically disproportionate adverse effect on members of a protected class, though such evidence alone is insufficient without proof of discriminatory purpose.
Dominion Capital adopts a hiring rule granting automatic preference to applicants with prior military service. Destiny Davis, a highly qualified civilian woman, is passed over in favor of a less experienced male veteran. The policy produces markedly lower female hire rates, yet the company adopted it solely to reward military experience rather than to exclude women.
Dakota Industries uses an unstructured supervisor evaluation system for promotions. Female employees including Doris Duffy receive promotions at significantly lower rates than male colleagues. The company maintains no formal criteria and relies entirely on subjective judgments.
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Dawson Steel evaluates teller promotions through informal supervisor recommendations without written standards. Minority employees such as Daniel Diaz are promoted at substantially lower rates than white employees. The bank offers no objective performance metrics to justify the outcomes.
Dixon Foods requires all applicants to pass a physical agility test designed for current employees. Disabled applicant Dylan Duffy fails at a markedly higher rate than nondisabled applicants. The state adopted the test to measure job-related fitness rather than to exclude disabled workers.
The state courthouse requires all visitors to climb stairs to reach filing counters. Disabled plaintiff Diego Duarte cannot access the counters and must rely on staff assistance that is frequently unavailable. The rule was enacted to control building costs rather than to disadvantage disabled persons.
A state agency adopts an English-only workplace rule for all internal communications. Employees whose primary language is Spanish, including Destiny Davis, receive discipline at higher rates than English-primary employees. The agency implemented the rule to promote workplace efficiency rather than to target any national-origin group.
No. A facially neutral policy that produces a disproportionate effect on a protected group does not violate equal protection unless the plaintiff also proves that the policy was adopted with discriminatory purpose.
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Subjective decision-making systems that lack formal criteria may be analyzed under the disparate impact approach when they produce statistically significant disparities in hiring or promotion outcomes.
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The plaintiff must demonstrate both a disproportionate adverse effect on a protected class and that the policy was enacted or maintained because of, not merely in spite of, that effect.
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Mere awareness of a disparate impact is insufficient. The decision-maker must have selected the policy at least in part because it would produce the adverse effect on the protected group.
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…their argument that the University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy. We must therefore conclude that…