Introduction
Reports of the death of Title VII’s disparate impact theory of discrimination in the wake of Ricci v. DeStefano[1] may be exaggerated.[2] Widely praised and widely criticized in the newspapers[3] and the blogosphere,[4] Ricci is the latest, but not the last, chapter in a long-running feud between Congress and the Supreme Court regarding disparate impact.
As the Supreme Court summarized the theory in International Brotherhood of Teamsters v. United States, disparate impact discrimination is the use of “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.”[5] First announced by the Supreme Court in Griggs v. Duke Power Co.,[6] the theory required a plaintiff to establish a prima facie case of disparate impact discrimination by showing that the challenged employment practice, although facially neutral in its treatment of different groups, in fact fell more harshly on one group, say African Americans or women, than another group, say whites or males. Once that prima facie case was established, the defendant had the burden of persuading the court that a “business necessity” or “job relation” justified the challenged practice.[7] When the challenged practice was a test with a disparate impact, the employer carried this burden by establishing its validity under technical testing standards developed originally by industrial psychologists and later articulated in federal agency guidelines.[8]
