Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal
In Griggs v. Duke Power Co. (1971), the Supreme Court, against the overwhelming weight of the evidence, interpreted Title VII to prohibit not just conscious and unconscious discrimination but also disparate impact, subject to an affirmative defense of business necessity. One problem is that, if disparate impact based on race, color, religion, sex or national origin is not universal, it is nearly so. It is difficult to come up with a job qualification that has been actually used to select one job applicant over another that does not have a disparate impact on some group. This article explores the history of disparate impact liability under Title VII, Congress’s apparent acquiescence in 1991, the extraordinary discretion it gives to the EEOC, its application to criminal background checks in particular, and arguments concerning its constitutionality.
