Also known as:disparate impact analyses · disparate-impact analysis · disparate impact · adverse impact analysis
Written by attorneys — see sources below.
A method of establishing unlawful discrimination through evidence that a facially neutral rule or practice disproportionately burdens members of a protected class. The analysis focuses on statistical outcomes rather than explicit classifications or stated motives. Under equal protection doctrine the method alone does not prove a constitutional violation without additional proof of discriminatory purpose.
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How its tested
Common Examples
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Veterans Preference Disproportionately Affects Women
Delilah Duran applied for a state civil-service position but lost to a less-qualified male veteran under a statute giving absolute hiring preference to veterans. The preference produced markedly lower success rates for female applicants overall. Duran sued claiming the statute violated equal protection because of its gender-disparate results. The court rejected the claim because the legislature had adopted the preference to reward military service rather than to disadvantage women.
Termination Policy Challenged Under Title VII
Dustin Donovan, a gay employee at Decker Electronics, was fired after his supervisor learned of his sexual orientation. Donovan introduced company data showing that policies on "conduct unbecoming" produced far higher termination rates for gay men than for straight employees. He argued the facially neutral rule created a disparate impact on the basis of sex. The court considered whether impact evidence could support liability under Title VII even without proof that the employer intended to target gay workers.
Bostock v. Clayton County, Georgia140 S. Ct. 1731, 1739 (2020)
The three cases consolidated before the Supreme Court arose when employers fired long-time employees shortly after the employees revealed their homosexual or transgender status.
Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate whose leadership earned the county national awards. After a decade with the county, Bostock began participating in a gay recreational softball league. Influential community members then made disparaging comments about his sexual orientation, and he was fired for conduct unbecoming a county employee.
Donald Zarda worked as a skydiving instructor at Altitude Express in New York for several seasons. After mentioning that he was gay, he was fired days later.
Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Michigan, presenting as male when hired. After two years she began treatment for gender dysphoria and wrote a letter stating she planned to live and work full-time as a woman. The funeral home fired her before she left for vacation.
Each employee sued under Title VII of the Civil Rights Act of 1964 alleging unlawful discrimination on the basis of sex. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and dismissed Bostock's suit as a matter of law. The Second Circuit allowed Zarda's claim to proceed on the ground that sexual orientation discrimination violates Title VII. The Sixth Circuit reached the same conclusion in Stephens's case regarding transgender status.
Both Zarda and Stephens passed away during the proceedings, but their estates continued to press the claims. The Supreme Court granted certiorari to resolve the disagreement among the courts of appeals over the scope of Title VII's protections for homosexual and transgender persons.
Discarded Promotion Test Sparks Reverse-Discrimination Suit
David Dawson and other white firefighters at Delta Dynamics scored highest on a promotion exam the city later discarded because minority pass rates were substantially lower. The city refused to certify the results and promoted no one. Dawson sued alleging the city's refusal violated Title VII by using race-based disparate-impact concerns to disadvantage higher-scoring white candidates. The court ruled that the city could not discard the results absent a strong basis in evidence that it would otherwise face disparate-impact liability.
Ricci v. DeStefano557 U.S. 557 (2009)
In 2003, the City of New Haven hired Industrial/Organizational Solutions, Inc. to develop and administer promotional examinations for lieutenant and captain positions in its fire department pursuant to a collective-bargaining agreement that required a written component weighted at 60 percent and an oral component weighted at 40 percent.
IOS performed job analyses that deliberately oversampled minority firefighters to avoid unintentional bias favoring white candidates. The examinations were administered in November and December 2003.
Seventy-seven candidates completed the lieutenant examination. Forty-one candidates completed the captain examination. The results showed pass rates of 58.1 percent for white candidates, 31.6 percent for Hispanic candidates, and 31.6 percent for black candidates on the lieutenant exam. Pass rates on the captain exam were 64.3 percent for white candidates, 37.5 percent for Hispanic candidates, and 0 percent for black candidates.
Under the rule of three, the top ten candidates eligible for lieutenant promotion were all white. The top nine candidates eligible for captain promotion were seven whites and two Hispanics. After the results were released, the City held five public hearings before its Civil Service Board between January and March 2004.
At those hearings, IOS vice president Chad Legel described the test-development process. Testing consultant Christopher Hornick criticized the 60/40 weighting and recommended assessment centers. Retired fire captain Vincent Lewis reviewed the content. Boston College professor Janet Helms discussed possible cultural bias in the job-analysis questionnaires. City officials including corporation counsel Thomas Ude and human-resources director Tina Burgett urged non-certification on the ground that the statistical disparity would expose the City to liability. Several candidates who had passed the exams urged certification. The Board deadlocked 2-2 and declined to certify the results.
Seventeen white firefighters and one Hispanic firefighter who had passed the examinations sued the City, Mayor John DeStefano, and other officials in the United States District Court for the District of Connecticut, alleging violations of Title VII and the Equal Protection Clause. The District Court granted summary judgment for the defendants. The Court of Appeals for the Second Circuit affirmed in a per curiam opinion. The Supreme Court granted certiorari.
Class Certification Denied for Lack of Common Proof
Denise Donovan and thousands of other female employees at Dominion Capital sought to certify a nationwide class alleging that the company's subjective promotion practices produced a disparate impact on women. The plaintiffs offered only statistical evidence of gender disparities in management positions. The court denied certification because the women could not show that the same employment practice affected every class member in a common way.
Wal-Mart Stores, Inc. v. Dukes564 U.S. 338 (2011)
In 2001, three current or former female employees of Wal-Mart Stores, Inc.—Betty Dukes, Christine Kwapnoski, and Edith Arana—filed a lawsuit in the Northern District of California alleging that the company had discriminated against them and other women in pay and promotions.
Wal-Mart, the nation’s largest private employer with approximately 3,400 stores across the country and more than one million employees, delegated pay and promotion decisions to local store managers who exercised broad discretion in a largely subjective manner. The plaintiffs claimed that this discretion was exercised disproportionately in favor of men, resulting in lower pay and fewer promotions for female employees.
They sought to represent a class of approximately 1.5 million current and former female employees who had worked at any Wal-Mart domestic retail store since December 26, 1998. To support their motion for class certification, the plaintiffs presented statistical evidence from experts Dr. Richard Drogin and Dr. Marc Bendick showing pay and promotion disparities between men and women, anecdotal evidence consisting of about 120 affidavits from female employees describing discriminatory experiences at only 235 of the company's 3,400 stores, and the testimony of sociologist Dr. William Bielby who analyzed Wal-Mart’s corporate culture.
Betty Dukes began working at a Pittsburg, California store in 1994 as a cashier and was later promoted to customer service manager before being demoted; she alleged retaliation and that male greeters were paid more. Christine Kwapnoski worked at Sam’s Club stores and claimed a male manager yelled at female employees and told her to “doll up.” Edith Arana worked at a Duarte, California store from 1995 to 2001. She was denied opportunities for management training despite repeated requests.
The District Court certified the class under Federal Rule of Civil Procedure 23(b)(2), finding that the plaintiffs had presented significant evidence of a company-wide pattern of discrimination. The Court of Appeals for the Ninth Circuit, sitting en banc, substantially affirmed the certification order. The Supreme Court granted certiorari to review whether the class certification was consistent with Rule 23(a) and (b)(2).
Derek Douglas, a male state employee, challenged a state family-leave statute that provided twelve weeks of leave only to mothers after childbirth. Statistical evidence showed the policy produced a disparate impact on fathers seeking comparable leave. The court upheld the statute because Congress had enacted it to remedy documented discrimination against women in the workplace rather than to discriminate against men.
Nevada Department of Human Resources v. Hibbs538 U.S. 721 (2003)
William Hibbs worked for the Nevada Department of Human Resources Welfare Division. In April and May 1997, Hibbs sought leave under the FMLA to care for his ailing wife who was recovering from a car accident and neck surgery. The Department granted his request for the full 12 weeks of FMLA leave and authorized him to use the leave intermittently as needed between May and December 1997.
Hibbs used the leave until August 5, 1997. In October 1997, the Department informed Hibbs that he had exhausted his FMLA leave, that no further leave would be granted, and that he must report to work by November 12, 1997. Hibbs failed to return to work by that date and was terminated.
Hibbs sued the Nevada Department of Human Resources and two of its officers in the United States District Court seeking damages and injunctive and declaratory relief for violations of the FMLA. The District Court awarded summary judgment to the defendants on the grounds that the FMLA claim was barred by the Eleventh Amendment. Hibbs appealed and the United States intervened to defend the validity of the FMLA's application to the States. The Ninth Circuit reversed the District Court's judgment.
When it enacted the FMLA, Congress considered evidence including a 1990 Bureau of Labor Statistics survey showing that 37 percent of surveyed private-sector employees were covered by maternity leave policies while only 18 percent were covered by paternity leave policies. Congress also heard testimony that parental leave for fathers is rare and that men receive discriminatory treatment in requests for such leave. A 50-state survey demonstrated that the proportion and construction of leave policies available to public sector employees differs little from those offered private sector employees. Many States offered women extended maternity leave that far exceeded the typical period of physical disability due to pregnancy and childbirth but very few States granted men a parallel benefit.
The Supreme Court granted certiorari to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court for violation of the FMLA's family-care provision.
Destiny Davis and other older police officers in the City of Jackson sued after a new pay plan granted larger raises to officers with fewer than five years of service. The plan produced statistically lower compensation increases for officers over age forty. The officers offered only impact evidence and no proof of intent to harm older workers. The court held that the Age Discrimination in Employment Act permits disparate-impact claims but requires plaintiffs to identify the specific practice causing the disparity and to prove it was not based on reasonable factors other than age.
Smith v. City of Jackson, Miss.544 U.S. 228 (2005)
Petitioners are a group of police and public safety officers employed by the city of Jackson, Mississippi. On October 1, 1998, the City adopted a pay plan granting raises to all City employees. The stated purpose of the plan was to attract and retain qualified people, provide incentive for performance, maintain competitiveness with other public sector agencies and ensure equitable compensation to all employees regardless of age, sex, race and/or disability.
On May 1, 1999, a revision of the plan, motivated at least in part by the City's desire to bring the starting salaries of police officers up to the regional average, granted raises to all police officers and police dispatchers. Those who had less than five years of tenure received proportionately greater raises when compared to their former pay than those with more seniority. Although some officers over the age of 40 had less than five years of service, most of the older officers had more.
Petitioners filed suit under the ADEA claiming both that the City deliberately discriminated against them because of their age and that they were adversely affected by the plan because of their age. The District Court granted summary judgment to the City on both claims. The Court of Appeals held that the ruling on the former claim was premature because petitioners were entitled to further discovery on the issue of intent, but it affirmed the dismissal of the disparate-impact claim.
The Supreme Court granted the officers' petition for certiorari.
Does statistical evidence of disparate impact alone prove an equal-protection violation?
No. Under equal protection doctrine a facially neutral policy that produces a disparate impact on a protected class does not violate the Constitution unless the plaintiff also proves that the policy was adopted for the purpose of discriminating against that class.
Supporting sources
What must a plaintiff show to prevail on a disparate-impact claim under the ADEA?
The plaintiff must identify the specific employment practice causing the disparity and demonstrate that the employer cannot justify the practice as based on reasonable factors other than age.
188 F.3d 394 (6th Cir. 1999)
…their argument that the University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy. We must therefore conclude that…