Disparate impact in the
law of the United States refers to practices in employment, housing, and other areas that adversely affect one group of people of a protected characteristic more than another, even though rules applied by employers or landlords are formally neutral. Although the protected classes vary by statute, most federal civil rights laws consider race, color, religion, national origin, and sex to be protected characteristics, and some laws include disability status and other traits as well.
A violation of Title VII of the
1964 Civil Rights Act may be proven by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class as compared with non-members of the protected class.
[1] Therefore, the disparate impact theory under Title VII prohibits employers "from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect."
[2] Where a disparate impact is shown, the plaintiff can prevail without the necessity of showing intentional discrimination unless the defendant employer demonstrates that the practice or policy in question has a demonstrable relationship to the requirements of the job in question.
[3] This is the "business necessity" defense.
[1]
Some civil rights laws, such as
Title VI of the Civil Rights Act of 1964, do not contain disparate impact provisions creating a private right of action,
[4] although the federal government may still pursue disparate impact claims under these laws.
[5] Although they do not contain explicit disparate impact provisions, the U.S. Supreme Court has held that the
Age Discrimination in Employment Act of 1967[6] and the
Fair Housing Act of 1968 create a cause of action for disparate impact.
[7] During the
second presidency of Donald Trump, US agencies were ordered to stop using disparate impact in civil rights cases.
[8]
The idea of disparate impact has been applied within the EU with respect to
systemic discrimination and substantive equality.
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