Also known as: disproportionate effects · 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 affects members of a protected class more adversely than others. The disparity alone does not establish a constitutional violation without proof of discriminatory purpose.
Deanna Davenport applied for a state civil service position but lost to a less qualified male veteran under a statutory preference rule. The preference produced markedly lower success rates for women because few women were veterans. The court upheld the rule because the state adopted it to reward military service rather than to disadvantage women.
Damian Decker sought approval to build affordable apartments in a predominantly white suburb. The town's zoning ordinance barred multifamily units in most districts and produced a statistically significant reduction in housing opportunities for minority families. The court required the town to justify the rule because the disproportionate effect on minorities triggered scrutiny under the Fair Housing Act.
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Danielle Dixon and other female employees at a large retailer showed that women received far fewer promotions to management than men despite similar qualifications. Company-wide statistical evidence revealed the disparity across thousands of stores. The court held that the evidence could not support class certification without proof of a common discriminatory policy rather than local variations.
Diego Duarte's promotion to partner was denied after negative comments about her aggressive style. Evidence showed that similar comments were not made about male candidates who received the same promotion. The court shifted the burden to the firm once the comments were shown to be a substantial factor in the decision.
No. A facially neutral policy that produces a disproportionate effect on a protected group does not violate equal protection unless the plaintiff also proves that the policy was adopted with discriminatory purpose.
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Plaintiffs may show a prima facie case by presenting statistical evidence that a facially neutral policy or practice has a significantly greater adverse impact on a protected class than on others or tends to perpetuate segregation.
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The plaintiff must prove that the preference was adopted because of its adverse effect on women rather than for the legitimate purpose of benefiting veterans.
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No. A defendant must prove purposeful discrimination in his own case rather than rely solely on general statistical disparities.
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…7213 (1964). Last Term, in Watson v. Fort Worth Bank & Trust , 487 U. S. 977 (1988), the Court unanimously concluded that the disparate impact analysis first enunciated in Griggs v. Duke Power Co. , 401 U. S. 424 (1971), should be extended to subjective or discretionary selection processes. At the same time a plurality of the…