Elizabeth Price Foley and Jason Torchinsky:
The Justice Department last week issued a rule doing away with “disparate impact” liability under one section of the 1964 Civil Rights Act. “Our rejection of this theory will restore true equality under the law by requiring proof of actual discrimination, rather than enforcing race- or sex-based quotas or assumptions,” Assistant Attorney General Harmeet Dhillon said at a press conference last week.
Disparate-impact theory allows a discrimination plaintiff to prevail based on statistical disparities in outcome, with no need to show an intent to discriminate. The theory appeared nowhere in the 1964 act, but the Justice Department grafted it onto Title VI, which prohibits discrimination by educational institutions and other recipients of federal money, via a 1966 regulation. The Equal Employment Opportunity Commission did the same for Title VII, which bars employment discrimination.
In Griggs v. Duke Power Co. (1971), the Supreme Court unanimously upheld the EEOC regulation. The justices held that Duke Power had discriminated against black employees by requiring applicants for promotion to have a high-school diploma and pass two aptitude tests. Unless the employer could prove a “business necessity” for policies with a disparate impact, it would be liable for discrimination.