American University Washington College of Law Digital Commons @ American University Washington College of Law Articles in Law Reviews & Other Academic Journals Scholarship & Research 2010 A Social Movement History of Title VII Disparate Impact Analysis Susan Carle American University Washington College of Law,
[email protected] Follow this and additional works at: http://digitalcommons.wcl.american.edu/facsch_lawrev Part of the Civil Rights and Discrimination Commons, and the Constitutional Law Commons Recommended Citation Carle, Susan. "A New Look at the History of Title VII Disparate Impact Doctrine." Florida Law Review 63, no. 1 (2011): 251-300. This Article is brought to you for free and open access by the Scholarship & Research at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Articles in Law Reviews & Other Academic Journals by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact
[email protected]. A SOCIAL MOVEMENT HISTORY OF TITLE VII DISPARATE IMPACT ANALYSIS ∗ Susan D. Carle Abstract This Article examines the history of Title VII disparate impact law in light of the policy and potential constitutional questions the Court’s recent decision in Ricci v. DeStefano raises. My analysis shows that, contrary to popular assumptions, disparate impact doctrine was not a last-minute, ill- conceived invention of the EEOC following Title VII’s passage. Instead, it arose out of a moderate, experimentalist regulatory tradition that sought to use laws to motivate employers to reform employment practices that posed structural bars to employment opportunities for racial minorities, regardless of invidious intent.