“The theory of disparate impact, despite its reaffirmation in the Civil Rights Act of 1991, has fallen into an inauspicious state of uncertainty. The landmark decision in Washington v. Davis called into question the doctrine’s constitutional legitimacy, and, ever since, disparate impact has become increasingly difficult to reconcile with conservative equal protection jurisprudence. Specifically, the theory underlying disparate impact —preventing facially neutral practices from perpetuating adverse effects on protected classes — conflicts with an understanding of equal protection as ‘more individualistic, more formal, and less concerned with history and social structure.’ But the theory underlying disparate impact focuses on discriminatory effect, as opposed to intent, which necessarily entails recognition of hierarchical structures of inequality. Disparate impact transcends discrete instances of discrimination in its larger aim to achieve integration. The legal controversy stems, in part, from this ambitious and affirmative scope.”

Source: Jake Elijah Struebing. “Reconsidering Disparate Impact Under Title VII: Business Necessity as Risk Management.” 34 Yale Law and Policy Review 499; 499-500. 2016.

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