Also known as: discriminatory effect · disparate impact
Written by attorneys · grounded in primary & secondary sources — see below
A statistical disparity in outcomes produced by a facially neutral policy or practice that adversely affects members of a protected group. Disparate impact alone does not establish an equal protection violation. Proof of purposeful discrimination is required to invalidate the policy.
Delta Dynamics adopts a hiring policy that awards extra points to applicants with military service. The policy results in far fewer women being hired because fewer women have veteran status. Daphne Doyle, a highly qualified female applicant, is rejected. She sues claiming gender discrimination under the Equal Protection Clause. The court upholds the policy because the company adopted it to reward military service rather than to exclude women.
The Village of Arlington Heights denies rezoning for a proposed multifamily development. The denial produces a disproportionate impact on Black residents eligible for the housing. Metropolitan Housing Development Corp. sues alleging racial discrimination. The court finds no equal protection violation because the village acted to protect property values and zoning integrity rather than to discriminate on the basis of race.
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A city denies a church's building permit under a neutral historic-preservation ordinance. The denial has a greater effect on the church's religious practices than on other property owners. The church sues claiming the ordinance violates its rights. The court rejects the claim because the ordinance was not enacted with the purpose of burdening religion.
Texas funds public schools partly through local property taxes. Districts with lower property values receive less per-pupil funding. Minority students in those districts experience worse educational outcomes. Parents sue alleging equal protection violations. The court upholds the system because the funding method was not adopted to discriminate against any racial group.
Price Waterhouse denies partnership to Ann Hopkins. Male partners criticize her interpersonal style while praising identical traits in male candidates. Hopkins sues alleging sex discrimination. The court finds that gender stereotyping was a substantial factor in the decision and shifts the burden to the firm to prove it would have made the same decision absent discrimination.
Female employees at Wal-Mart allege that local managers' discretionary decisions produce lower pay and fewer promotions for women. The plaintiffs seek to certify a nationwide class based on statistical disparities. The court denies certification because the employees cannot show a common policy of intentional discrimination connecting all claims.
No. A facially neutral policy that produces a disproportionate adverse effect on a protected group does not violate equal protection without proof that the policy was adopted because of its discriminatory effect rather than in spite of it.
The plaintiff must prove that the government or defendant acted with discriminatory purpose. Evidence of impact is relevant but insufficient by itself. The decision maker must have selected the policy at least in part because it would disadvantage the protected group.
Discriminatory effects supply circumstantial evidence that may help prove intent. Standing alone, however, effects never establish an equal protection violation. Courts require an additional showing that the policy was chosen because of its impact on the protected class.
…by a compelling interest and is the least restrictive means of accomplishing that interest. If Congress can prohibit laws with discriminatory effects in order to prevent racial discrimination in violation of the Equal Protection Clause, see Fullilove v. Klutznick , 448 U. S. 448, 477 (1980) (plurality opinion); City of Rome , 446 U.…