Disparate impact is a method of analysis favored by the Obama administration for identifying and suing employers who engage in discrimination, whether or not they intend to do so. Employers complain that they can be held liable for millions of dollars in damages and back wages based simply upon the statistical makeup of their work force, without any evidence they intended to discriminate.
While the rule is new, the disparate impact standard is not. This rule does not change the substance of the law in any way. It simply clarifies a longstanding policy in fair housing enforcement. For more than 40 years HUD, the Department of Justice, and other enforcement agencies, under Democratic and Republican Administrations, have enforced the disparate impact standard. All 11 circuit courts that have considered the issue of whether or not Congress intended for the law to prohibit such practices that had a discriminatory effect have ruled that this in fact was the intent.
Resorting to invoking right-wing media’s favorite civil rights bogeyman of the long-established legal doctrine for establishing impermissible racial discrimination from unjustified racial effects, York accused Adegbile of “embrac[ing]” the EEOC’s “crazy” use of disparate impact precedent.
EEOC Compliance Manual » Section 15: Race and Color Discrimination
Proving unlawful disparate impact under Title VII first requires a statistical demonstration that the employer has an employment policy or practice that causes a significant disparate impact based on race (or another protected trait). The particular policy or practice causing the impact must be identified, unless the elements of the employer’s decision-making process cannot be separated for analysis, in which case the decision-making process can be analyzed as one employment practice.(76)
Once a policy or practice has been proven to cause a significant impact, the employer has the burden of demonstrating that the policy or practice is job related for the position in question and consistent with business necessity.(77) If the employer satisfies this burden, the case focuses on whether the person challenging the policy or practice can demonstrate that a less discriminatory alternative exists that meets the business need and whether the employer refuses to adopt it. (78)
- Title VII of the Civil Rights Act of 1964
- PDF: Two Faces of Disparate Impact Discrimination
- PDF: Reconceptualizing Meritocracy: The Decline of Disparate Impact Discrimination Law