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What Is Disparate-Impact Discrimination? – Analysis

By April J. Anderson Many federal antidiscrimination laws encompass two theories of discrimination: disparate treatment and disparate impact. Disparate-treatment discrimination involves intentional harm based on race, sex, disability, or some other proscribed motive. Disparate-impact discrimination occurs when a seemingly neutral policy or action causes a disproportionate and unjustified negative harm to a group, regardless of intent. Statutes That Allow Disparate-Impact Liability Constitutional discrimination claims, grounded in the Fifth and Fourteenth Amendments, must assert intentional discrimination, not just disparate impact. Disparate-impact claims are permitted, however, under some antidiscrimination statutes. The disparate-impact theory of liability was first applied in the Supreme Court's 1971 interpretation of Title VII, which bars employment discrimination. In Griggs v. Duke Power Co., the Court concluded that a power company used job criteria that disproportionately eliminated Black applicants but were not "significantly related to successful job performance" and did not advance the company's asserted goal of facilitating promotions within the company. The Court held that the policy violated the statute, saying that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." In 1991, Congress amended Title VII, codifying the theory and laying out the burden-shifting framework described above. In addition to Title VII, court opinions and agency regulations have applied the disparate-impact theory to discrimination under other statutes, including age discrimination under the Age Discrimination in Employment Act, lending discrimination under the Equal Credit Opportunity Act, and housing discrimination under the Fair Housing Act (FHA). In the FHA context, the Supreme Court stated that "zoning laws and other housing restrictions that unfairly exclude minorities from certain neighborhoods without sufficient justification" are at the heart of disparate-impact liability. The Americans with Disabilities Act (ADA) also bars disparate-impact discrimination in public accommodations, disallowing criteria "that have the effect of discrimination on the basis of disability." Depending on the underlying statute, there may be procedural differences between disparate-impact and disparate-treatment claims. Under Title VII of the Civil Rights Act of 1964, for example, a disparate-impact finding does not allow for damages as a disparate-treatment claim does. The availability of disparate-impact liability under certain other antidiscrimination laws is unclear. For example, whether disparate-impact liability exists under the Rehabilitation Act has yet to be conclusively decided. Finally, some antidiscrimination statutes clearly do not include disparate-impact liability. At times, as with the Genetic Information Nondiscrimination Act, Congress has expressly barred disparate-impact claims. The Supreme Court has also concluded that one wide-ranging statute, Title VI of the Civil Rights Act of 1964, does not support disparate-impact claims. This statute reaches public programs that accept federal funding (e.g., in education, transportation, and health care) and bars discrimination based on race or national origin. After initially appearing to allow disparate-impact claims under Title VI, the Supreme Court later concluded that statute's central provision does not support disparate-impact claims; thus, private plaintiffs may not bring disparate-impact suits under Title VI. Disparate-Impact Regulations Even though it disallowed private disparate-impact suits under Title VI, the Supreme Court has left open the question of whether federal agencies may issue and enforce Title VI regulations requiring grantees to avoid disparate impacts. In the absence of a definitive ruling on the question, grant-administering agencies have promulgated such Title VI disparate-impact regulations and developed internal