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Disparate Impact
While disparate treatment discrimination involves acts of intentional exclusion, disparate impact discrimination exists when employment policies, regardless of intent, adversely affect one group more than another--and do so without justifiction. This section briefly outlines the structure of disparate impact analysis, the policies subject to disparate impact analysis, and defenses to a disparate impact case.
Disparate impact claims can be brought under Title VII of the Civil Rights Act of 1964 and under the ADA (there is also a weak version of a disparate impact claim under the ADEA). By contrast, such a theory is not available under 42 U.S.C. §1981, §1983, or the Equal Protection Clause.
In this section, we will study the rise of disparate impact claims, their basic operation, their relation to disparate treatment claims, and their current fate.
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