Disparate impact
This article does not receive scheduled updates. If you would like to help our coverage grow, consider donating to Ballotpedia. Contact our team to suggest an update.
Disparate impact is a legal theory of discrimination liability that holds employers, housing authorities, and other entities accountable for practices that have discriminatory effects on groups protected under anti-discrimination laws, even when there is no intent to discriminate. This differs from disparate treatment, in which the discrimination is overt and intentional. Disparate impact cases have commonly been brought under three pieces of civil rights legislation:
- Age Discrimination in Employment Act of 1967,
- Title VII of the Civil Rights Act of 1964, and
- Title VIII of the Civil Rights Act of 1968 (also known as the Fair Housing Act).
Disparate impact cases do not require proof of discriminatory motive on the part of the defendant but are still quite difficult to prove. Though the United States Supreme Court first validated disparate impact theory in 1971, the Equal Employment Opportunity Commission has been a consistent defender of the theory since it began operating in 1966. Later rulings by the court weakened the disparate impact argument, such as Wards Cove Packing Co. v. Atonio. The theory has remained controversial, since some argue it conflicts with the Equal Protection Clause of the Fourteenth Amendment, which provides for equal treatment under the law.[1][2][3]
Explanation
Unlike traditional discrimination lawsuits, a disparate impact case alleges that an employment or housing practice, although neutral on its surface and applied without discriminatory intent, is unintentionally discriminatory because it causes an adverse effect on protected classes of individuals who possess certain traits. In other words, the outcomes of the practice are disproportionately unequal for these individuals. Protected traits commonly include one's race, color, religion, sex, or national origin, but can also include age or disability. In employment, disparate impact cases transpire in three steps:[1]
- The plaintiff must prove that a specific employment or housing practice causes an adverse effect on members of a protected class.
- If disparate impact is proven, the employer must then show that the practice was undertaken as a "business necessity" or is "manifestly related" to the duties of the job.
- If business necessity is proven, the plaintiff must then demonstrate that the employer could achieve its business goals with practices that do not have an adverse effect.
Disparate impact is often quite difficult to prove. In employment for instance, it has been noted that by itself, proof of imbalance between the racial, ethnic, and gender makeup of an employer's workforce and that of the surrounding community does not constitute proof of disparate impact. If a plaintiff chooses to use this imbalance as evidence, it must prove that the imbalance is caused by the employment practice, a more difficult task. However, the plaintiff's evidence does not need to prove discriminatory motive on the part of the defendant; the court’s interest is only in the effect of a particular practice, not the motive behind it.[1][2][4]
Conflict with Equal Protection Clause
Although the United States Supreme Court has significantly limited the ability to argue successfully a disparate impact case, it has avoided addressing whether the disparate impact provision in Title VII is in conflict with the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause States:[1][5]
| “ |
No state shall ... deny to any person within its jurisdiction the equal protection of the laws.[6] |
” |
| —14th Amendment of the United States Constitution | ||
All individuals in similar situations must be treated equally under the law. According to the Legal Information Institute at Cornell University, the "equal protection clause is not intended to provide 'equality' among individuals or classes but only 'equal application' of the laws." Some individuals and organizations, like the Cato Institute, find that disparate impact theory conflicts with the Equal Protection Clause because it seeks equality of outcome, rather than equality of opportunity. A central question for courts regarding disparate impact has been to what extent employers may intentionally discriminate against some people to "avoid the unintended discrimination" toward others that may result from an employment practice.[7][8]
Supreme Court cases
Griggs v. Duke Power Co.
Disparate impact discrimination was first recognized by the United States Supreme Court in Griggs v. Duke Power Co. in 1971. The case examined a class-action lawsuit filed by Willie Griggs against his employer, Duke Power Company, under Title VII of the Civil Rights Act of 1964, which made it unlawful for employers to discriminate against protected individuals, or utilize any practice which has an adverse effect on protected classes. The wording of the relevant provision in Title VII states:[9][10]
| “ |
It shall be an unlawful employment practice for an employer to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.[6] |
” |
| —Title VII of the Civil Rights Act of 1964 | ||
Prior to the Civil Rights Act, the company had permitted black employees to work only in its low-paying Labor department, while white employees were hired or promoted into its higher-paying Maintenance, Operations and Laboratory departments. After the legislation went into effect, Duke Power Co. began requiring Labor employees who wanted to transfer to another department to have a high school diploma and pass two aptitude tests. A disproportionate number of white employees were able to meet these requirements as compared to black employees.[10]
The Supreme Court ruled that the company's requirements had a discriminatory adverse effect on black workers by preventing them from being hired by and advancing within the company. Duke Power also failed to prove that these requirements reflected an employee's ability to perform the job. Although the practice appeared to be nondiscriminatory, it was illegal because of its discriminatory consequences. This ruling formed a basis for the legal theory of disparate impact:[10]
| “ |
Before Griggs, employees or job applicants who accused employers of racial discrimination had to prove discriminatory intent to have success in litigation; after Griggs, those claiming discrimination had to prove only discriminatory effects of hiring or advancement practices.[6] |
” |
| —North Carolina History Project | ||
The Supreme Court ruling placed the burden on employers to show the "business necessity" of an employment practice with a disparate impact. In its analysis, the court established the general three-step process for examining disparate impact claims.[1]
Wards Cove Packing Co. v. Atonio
A subsequent ruling by the Supreme Court in Wards Cove Packing Co. v. Atonio (1989) weakened the disparate impact theory by shifting the burden of proof to the employees to demonstrate how a specific employment practice resulted in a discriminatory outcome. In addition, the court lightened the burden on the employer by requiring proof of "business justification," or sufficient reason, rather than business necessity.[11][12][13]
Civil rights groups saw the ruling as a setback for ending discrimination and pushed for legislation to amend the Civil Rights Act with more protections for minority workers. In response, Congress passed the Civil Rights Act of 1991 with the express purpose of overturning the Wards Cove decision:[1][2][10][11][14]
| “ |
The purposes of this Act are--
|
” |
| —Civil Rights Act of 1991 | ||
The amendment included as a provision the three-step process as laid out in the Griggs decision and placed the burden back on employers to establish the business necessity of a practice causing disparate impact.
Ricci v. DeStefano
A test of the conflict between protecting equality of outcomes versus equality of opportunity in hiring came in the 2009 Ricci v. DeStefano decision. A group of firefighters brought a lawsuit against the city of New Haven, Connecticut when the city discarded the results of a test for promotion. A disproportionate number of white firefighters had passed the test in comparison to minority firefighters, leading the city to discard the test results in order to protect itself from disparate impact liability under Title VII. The Supreme Court ruled that in taking this action, the city had actually committed discriminatory disparate treatment in violation of Title VII and the Fourteenth Amendment. However, in his opinion, Justice Scalia "noted that the Court avoided answering whether the 'disparate impact' provision of Title VII was consistent with the Equal Protection Clause."[15]
Texas Department of Housing and Community Affairs v. Inclusive Communities Project
On June 25, 2015, the Supreme Court held in a 5-4 decision that the Fair Housing Act covers not only intentional housing discrimination but also practices that have a discriminatory effect, whether intended or not.[16][17] Justice Anthony Kennedy wrote the opinion for the court, and Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined. Justice Samuel Alito wrote a dissent, joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas. Thomas also wrote a dissent.[16]
Background
The Texas Department of Housing and Community Affairs allocates federal tax credits for low-income housing in the state. The Inclusive Communities Project (ICP) filed a suit against the Department of Housing under the Fair Housing Act (FHA), claiming that the Department of Housing had perpetuated segregation by offering more tax credits for housing in black urban areas than white suburban areas.[16] The argument was based on the theory that although there was no evidence of an intent to discriminate, the housing policy had a disproportionately negative impact on minorities.
The question at issue was whether this disparate impact claim was allowed under the Fair Housing Act. The District Court for the Northern District of Texas found in favor of ICP because the Department of Housing did not show there were no other less discriminatory methods to allocate the tax credits. The Court of Appeals for the Fifth Circuit reversed and remanded on the merits. Since the Secretary of Housing and Urban Development had recently acknowledged disparate impact liability under the FHA and issued a regulation providing for a burden-shifting framework, the Fifth Circuit held the burden the District Court had imposed on the Department of Housing was improper.[16]
The Supreme Court agreed to hear the case on October 2, 2014, and oral arguments were heard on January 21, 2015.[18]
Decision
Justice Anthony Kennedy authored the opinion and was joined by Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor. In the 20 years following the FHA's enactment, every circuit court to address the question of disparate impact claims found they were cognizable under the FHA. Congress amended the law in 1988 without adding language to bar disparate impact claims. Explaining this tacit acceptance, Kennedy wrote,[19]
| “ | "Congress’ decision in 1988 to amend the FHA while still adhering to the operative language...is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability."[6] | ” |
Kennedy explained the narrow circumstances under which a disparate impact claim could succeed: the plaintiff must show that any statistical disparity is directly linked to the defendant's policies. Kennedy explained, "A robust causality requirement ensures that '[r]acial imbalance . . . does not, without more, establish a prima facie case of disparate impact' and thus protects defendants from being held liable for racial disparities they did not create." This restriction was necessary to protect both private developers and governmental entities, Kennedy added. Highlighting the importance of the FHA to integration, Kennedy noted, "Much progress remains to be made in our Nation’s continuing struggle against racial isolation."[19]
Dissent
Justice Samuel Alito wrote a dissent joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas. Calling the majority's opinion "a serious mistake," Alito did not find Kennedy's argument about Congress' intent compelling. Alito explained that "what matters is what Congress did, not what it might have 'assumed.'"
Justice Thomas also wrote a dissent warning that disparate impact liability will have severe consequences for people in need of access to housing. Using the Houston Housing Authority (HHA) as an example, Thomas wrote,[19]
| “ | "Because Houston is a majority-minority city with minority concentrations in all but the more affluent areas, any HHA developments built outside of those areas will increase the concentration of racial minorities. Unsurprisingly, the threat of disparate-impact suits based on those concentrations has hindered HHA’s efforts to provide affordable housing. State and federal housing agencies have refused to approve all but two of HHA’s eight proposed development projects over the past two years out of fears of disparate-impact liability. That the majority believes that these are not 'dire consequences,' is cold comfort for those who actually need a home."[6] | ” |
Reaction
Civil rights groups celebrated the ruling: it was believed to make claims of racial discrimination in housing cases easier since they will no longer be limited by having to prove intent. U.S. Attorney General Loretta Lynch said, in reaction to the decision, that "While our nation has made tremendous progress since the Fair Housing Act was passed in 1968, disparate impact claims remain an all-too-necessary mechanism for rooting out discrimination in housing and lending."[20]
Opponents of the decision argued that the decision will lead to more cases of discrimination: housing developers and officials will be more likely to make race-based decisions in order to avoid disparate impact liability. The ruling against discrimination based on impact, rather than intent or actual treatment, they argued, will end up hurting minorities. They also argued that the ruling violates the intended effect of the Fair Housing Act as written by Congress, and, therefore, undermines the rule of law.[21][22]
See also
External links
- U.S. Equal Employment Opportunity Commission
- Text of Title VII of the Civil Rights Act of 1964
- Text of the Fourteenth Amendment of the United States Constitution
Additional reading
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 The Free Dictionary, "Disparate Impact," accessed March 9, 2015
- ↑ 2.0 2.1 2.2 FindLaw, "Disparate Impact Discrimination," accessed March 9, 2015
- ↑ U.S. Equal Employment Opportunity Commission, "1966," accessed March 9, 2015
- ↑ U.S. Equal Employment Opportunity Commission, "Title VII of the Civil Rights Act of 1964," accessed March 9, 2015
- ↑ Legal Information Institute, "14th Amendment," accessed March 9, 2015
- ↑ 6.0 6.1 6.2 6.3 6.4 6.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Legal Information Institute, "Equal protection," accessed March 9, 2015
- ↑ Cato Institute, "The War between Disparate Impact and Equal Protection," accessed March 9, 2015
- ↑ Oyez, "Griggs v. Duke Power Company," accessed March 9, 2015
- ↑ 10.0 10.1 10.2 10.3 North Carolina History Project, "Griggs v. Duke Power," accessed March 9, 2015
- ↑ 11.0 11.1 Encyclopedia.com, "Ward's Cove Packing Co., Inc., v. Atonio," accessed March 9, 2015
- ↑ Oyez, "Wards Cove Packing Co. v. Atonio," accessed March 9, 2015
- ↑ Legal Information Institute, "Ward's Cove Packing Co., Inc. v. Antonio," accessed March 16, 2015
- ↑ GovTrack, "Text of the Civil Rights Act of 1991," accessed March 9, 2015
- ↑ Oyez, "Ricci v. DeStefano," accessed March 9, 2015
- ↑ 16.0 16.1 16.2 16.3 SupremeCourt.gov, "Texas Department of Housing v. Inclusive Communities Project, No. 13-1371," June 25, 2015
- ↑ CNN, "Court upholds key tool to combat housing discrimination," June 25, 2015
- ↑ SCOTUSblog, "Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.," accessed June 29, 2015
- ↑ 19.0 19.1 19.2 Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., No. 13-1371
- ↑ National Public Radio, "In Fair Housing Act Case, Supreme Court Backs 'Disparate Impact' Claims," accessed July 27, 2015
- ↑ National Review, "The Supreme Court's Disparate-Impact Decision Is a Disaster," June 26, 2015
- ↑ The Wall Street Journal, "The Supreme Court's Disastrous Misreading of the Fair Housing Act," June 30, 2015
