Here is a stylized, simplified account of the disparate impact branch of discrimination law. Employer (E) uses certain criteria—which I shall call “the test”—to determine whom to employ. Those who qualify under the test may be disproportionately of a certain race, sex, national origin, or religion. I shall call those races, sexes, et cetera, that are disproportionately qualified under the test “the preferred,” and those races, sexes, et cetera, that are disproportionately unqualified under the test “the dispreferred.” In a disparate impact discrimination case—and again, I am simplifying somewhat, though immaterially—an employee candidate (C) who is both a member of the dispreferred and who also fails to qualify for employment under the test can sue E for discrimination against C “because of” C’s race, sex, et cetera. The discrimination consists of two elements: (1) use of the test, which has an adverse impact on the dispreferred as groups, and (2) the absence of a “business necessity” for using the test. So disparate impact discrimination consists of employing an inefficient employment test that has a disproportionate adverse impact on certain groups of candidates, groups that are defined racially, sexually, et cetera. The question is, what justifies making disparate impact discrimination illegal? Its wrongness? But is it wrong? Some other reason? If so, what is it? In what follows I shall consider three possible reasons for the disparate impact cause of action: (1) smoking out disparate treatment discrimination; (2) the inherent unfairness of disproportionate impact; and (3) the unfairness of inefficient job qualifications. I shall conclude that none of these reasons justifies the cause of action.
Disparate Impact: Fairness or Efficiency?,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol50/iss1/6