Also known as: disparate impact frameworks · disparate-impact framework · disparate impact · disparate impact doctrine
Written by attorneys · grounded in primary & secondary sources — see below
An analytical structure used in constitutional equal-protection cases to evaluate whether a facially neutral policy produces a statistically disproportionate adverse effect on a protected class. The structure requires proof that the policy was adopted with discriminatory purpose rather than impact alone.
Doris Duffy, a civilian woman, applied for a state clerical position but lost to a less qualified male veteran under a statute granting absolute hiring preference to veterans. The state adopted the preference to reward military service. Duffy's statistical evidence showed the rule excluded nearly all women from the applicant pool. The court upheld the statute because the legislature acted to benefit veterans and not to harm women.
Diana Delgado was fired from her county job after her employer learned she was married to another woman. The county claimed the termination rested on a neutral rule barring all married employees from certain roles. Delgado introduced data showing the rule eliminated virtually every openly gay worker while sparing heterosexual married staff. The court examined whether the neutral rule was a pretext for intentional discrimination on the basis of sexual orientation.
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Dominic Drake and other minority firefighters scored lower on a newly validated promotion test than white candidates. The city discarded the results to avoid a racially unbalanced outcome. Drake sued, arguing the city's refusal to certify the test itself constituted intentional discrimination against higher-scoring white applicants. The court weighed whether the city could justify discarding a professionally developed exam solely because of its racial impact.
Deanna Davenport sought to represent a nationwide class of female Wal-Mart employees who were passed over for management positions. She offered regional statistics showing women received fewer promotions than men with similar qualifications. The court evaluated whether the statistical pattern could support a company-wide finding of discriminatory intent or merely reflected decentralized local decisions.
Darrell Duncan, a state employee, was denied extended family leave available only to mothers under a state policy. He presented data showing the policy overwhelmingly benefited women and excluded men from comparable caregiving time. The court assessed whether the gender-based impact reflected intentional discrimination against fathers or a permissible effort to address historical differences in family responsibilities.
Dolores Diaz and other older police officers challenged a city pay plan that awarded larger raises to officers with fewer than five years of service. The plan produced markedly lower compensation growth for officers over age forty. Diaz offered statistics showing the formula disadvantaged older workers. The court considered whether the neutral formula was adopted because of its age-based effects or for legitimate fiscal reasons.
No. Statistical evidence that a facially neutral policy disadvantages a protected group is insufficient without additional proof that the government acted with discriminatory purpose.
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A disparate treatment claim requires direct or circumstantial evidence that the defendant acted because of the plaintiff's protected characteristic. The disparate impact framework instead begins with statistical proof of disproportionate effect and then shifts the burden to the defendant to justify the policy.
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In statutory employment claims under Title VII, yes, provided the plaintiff satisfies the three-step burden-shifting analysis. In constitutional equal protection claims, however, the plaintiff must still prove purposeful discrimination.
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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…