GW Law Faculty Publications & Other Works Faculty Scholarship 2006 Was the Disparate Impact Theory a Mistake? Michael Selmi George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L. Rev. 701 (2006). This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. WAS THE DISPARATE IMPACT THEORY A MISTAKE? * Michael Selmi The disparate impact theory long has been viewed as one of the most important and controversial developments in antidiscrimination law. In this Article, Professor Selmi assesses the theory’s legacy and challenges much of the conventional wisdom. Professor Selmi initially charts the development of the theory, including a close look at Griggs v. Duke Power Co. and Washington v. Davis, to demonstrate that the theory arose to deal with specific instances of past discrimination rather than as a broad theory of equality. In the next section, Professor Selmi reviews the success of the theory in the courts through an empirical analysis and concludes that it has had a strikingly limited impact outside of the context of written employment tests and is, in fact, an extremely difficult theory on which to succeed. In the final section, Professor Selmi contends that whatever gains the disparate impact theory has produced likely could have been obtained through other means, particularly in large urban cities, and that the theory may have had the unintended effect of limiting our conception of intentional discrimination. Disparate impact theory always has been seen as beginning where intentional discrimination ends, and by pushing an expansive theory of impact, we were left with a truncated theory of intentional discrimination that continues to turn on animus and motive. Rather than a new legal theory of discrimination, Professor Selmi concludes, a greater societal commitment to remedying inequities was needed, as the ultimate mistake behind the disparate impact theory was the belief that legal theory could do the work that politics could not. INTRODUCTION .............................................................................................................702 I. THE ROAD TO GRIGGS AND BEYOND .....................................................................708 A. The Seniority Cases and the Origins of the Disparate Impact Theory..........708 B. Testing Cases and the EEOC.........................................................................714 C. The Griggs Decision .......................................................................................717 * Professor of Law, George Washington University Law School. This Article was completed while I was a Visiting Professor at Harvard Law School where I received excellent research assistance from Courtney Chai and Michael Stein. At George Washington University, I also benefited by terrific research assistance from Kim Sikora and Terra Nevitt. Many friends and colleagues have offered generous comments on prior drafts, including Dean Fred Lawrence, Paul Butler, Charlie Craver, Wendy Parker, Michael Van Alstine, Marion Crain, Pauline Kim, Michael Stein, and Charlie Sullivan, and I am particularly indebted to Christine Jolls for discussions and comments. Earlier versions of this Article were presented at the Annual Law and Society Conference, and at faculty workshops at Boston University and George Washington University Law School where I also received valuable feedback. 701 702 53 UCLA LAW REVIEW 701 (2006) D. Washington v. Davis and the Turn to Intent ..................................................725 II. ASSESSING THE THEORY IN THE COURTS...............................................................734 A. The Scope of the Study..................................................................................734 B. The Success of the Disparate Impact Theory ................................................738 1. Empirical Assessment .............................................................................738 2. Subjective Employment Practices and Age Cases..................................744 3. Pregnant Women and Bearded Men ......................................................749 III. ASSESSING THE EFFECT OF THE DISPARATE IMPACT THEORY ................................753 A. The Gains of the Disparate Impact Theory ...................................................755 1. Testing Cases as Intentional Discrimination Claims .............................757 2. Politics and the Disparate Impact Theory..............................................763 B. The Mistake in the Disparate Impact Theory................................................767 1. The Disparate Impact Theory Is Easier to Prove....................................768 2. The Law Should Move Away From a Focus on Blame...........................773 3. The Limitations of Intent.......................................................................776 CONCLUSION.................................................................................................................782 INTRODUCTION Within antidiscrimination law, no theory has attracted more attention or controversy than the disparate impact theory, which allows proof of discrimination without the need to prove an intent to discriminate. The general outlines of the controversy are well known. In the 1971 landmark decision of Griggs v. Duke Power Co.,1 the U.S. Supreme Court unanimously approved of the theory in the context of statutory employment discrimination claims.2 Five years later in the equally momentous Washington v. Davis3 the Court refused to extend the theory to constitutional claims, holding instead that intentional discrimination is required to establish a violation of the Equal Protection Clause.4 Both of these cases involved written employment examinations, but advocates have sought to extend the theory to virtually every civil rights context under the perception that the disparate impact theory would reach discrimination that was otherwise out of reach for claims of intentional discrimination.5 Just last term, the 1. 401 U.S. 424 (1971). 2. Id. at 436 (interpreting Title VII to include disparate impact cause of action). 3. 426 U.S. 229 (1976). 4. Id. at 239. 5. See, e.g., Alexander v. Sandoval, 532 U.S. 275 (2001) (holding that Title VI requires proof of intentional discrimination); Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982) (holding that § 1981 prohibiting discrimination in contracting only applies to claims of intentional discrimination); City of Mobile v. Bolden, 446 U.S. 55 (1980) (holding that a voting Was the Disparate Impact Theory a Mistake? 703 Supreme Court applied the cause of action to age discrimination claims, settling a longstanding dispute in the lower courts.6 Together Griggs and Washington v. Davis are widely seen as two of the most influential civil rights decisions ever issued. The Griggs decision has been universally hailed as the most important development in employment discrimination law.7 Even critics concede its influence and have long sug- gested that the theory encourages employers to rely on quotas as a means of avoiding disparate impact lawsuits.8 And when adverse Supreme Court decisions threatened to eviscerate the Griggs decision, Congress responded by passing the Civil Rights Act of 1991.9 The reaction to Washington v. Davis has been equally spirited, though in many respects the polar opposite of that for Griggs. Liberal academics have denounced the decision as unjustifiably limiting the scope of the Equal Protection Clause, and Charles Lawrence’s renowned article that helped rights claim brought under the Fifteenth Amendment required proof of intentional discrimination). Before the Supreme Court issued its decision in Sandoval, there was some room for plaintiffs to pursue disparate impact claims under Title VI, a statute that requires nondiscrimination by federal contractors, pursuant to the regulations that were issued to implement the statute. See Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 (1983). 6. Smith v. City of Jackson, 125 S. Ct. 1536 (2005). The battle over applying the disparate impact theory to age discrimination cases is discussed in Part II.B.2, infra. 7. See, e.g., HUGH DAVIS GRAHAM, THE CIVIL RIGHTS ERA: ORIGINS AND DEVELOPMENT OF NATIONAL POLICY 1960–1972, at 383–86 (1990) (stating that Griggs “burst like a bombshell” and discussing its importance); Robert Belton, Title VII at Forty: A Brief Look at the Birth, Death, and Resurrection of the Disparate Impact Theory of Discrimination, 22 HOFSTRA LAB. & EMP. L.J. 431, 433 (2005) (labeling Griggs “[a]side from Brown . the single most influential civil rights case during the past forty years”); Alfred W. Blumrosen, The Legacy of Griggs: Social Progress and Subjective Judgments, 63 CHI.-KENT L. REV. 1, 1–2 (1987) (“Few decisions in our time—perhaps only Brown v. Board of Educ.—have had such momentous social consequences [as Griggs].”). 8. For example, Richard Epstein, a fierce critic of the theory, has called Griggs “the first and single most important Supreme Court decision under Title VII . .” RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION