Also known as: disparate impact · disparate-impact theory · disparate impact doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A theory of liability for discrimination that holds an employer or other actor liable for using a facially neutral practice or policy that has a disproportionately adverse effect on members of a protected class, without requiring proof that the actor intended to discriminate.
Doris Duffy applied for a state clerical position but lost out to a less qualified male veteran under a hiring rule that awarded points for prior military service. The rule produced far fewer female hires because women rarely had veteran status. The court upheld the rule because its purpose was to reward military service rather than to exclude women.
Denise Donovan, a Black applicant, showed that a union's job-referral system sent far fewer calls to Black members than to white members despite equal qualifications. The statistics established a clear racial disparity in work assignments. The court found liability under the theory even without evidence that union officials acted with racial animus.
Select any source to read its text and confirm it supports the definition.
Destiny Davis, a transgender woman, was terminated under a company rule requiring employees to use bathrooms corresponding to their birth certificate sex. The rule produced a stark adverse effect on transgender workers. The court applied the theory to evaluate whether the neutral policy violated Title VII without separate proof of intent to harm transgender employees.
Dylan Duffy and other minority firefighters scored lower on a written promotion exam than white candidates. The city discarded the results to avoid a racially skewed outcome. The court examined whether the city could justify abandoning the test under the theory when the exam had not been shown to be job-related.
Diana Delgado and other female employees at Dominion Capital stores received lower pay and fewer promotions than male counterparts. Local managers exercised unchecked discretion over compensation and advancement decisions. The court assessed whether the absence of uniform standards created a cognizable claim under the theory for the class.
Dustin Donovan, an older applicant for a city police job, failed a physical agility test that younger candidates passed at much higher rates. The test produced a statistically significant exclusion of applicants over age forty. The court evaluated the claim under the theory to determine whether the city had to prove the test was justified by business necessity.
No. The theory permits liability based solely on the disproportionate adverse effect of a neutral practice on a protected group. Plaintiffs need not show that the employer acted with a purpose to discriminate.
Supporting sources
A plaintiff must identify a specific employment practice and demonstrate through statistical evidence that the practice causes a disproportionate adverse effect on a protected class. The burden then shifts to the employer to justify the practice.
Supporting sources
No. Constitutional claims require proof of discriminatory purpose. A showing of disproportionate impact alone is insufficient to establish a violation of the Equal Protection Clause.
Supporting sources
The Act codified the theory and restored the pre-Wards Cove framework. Employers must show that the challenged practice is job-related and consistent with business necessity, and plaintiffs may still prevail by identifying an alternative practice with less impact.
Supporting sources
…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…