Disparate Impact and the Civil Rights Act of 1991
This paper will first discuss the disparate impact theory and the respective burdens of the plaintiff and defendant under this theory as it was articulated up until Wards Cove v. Antonio. It will then discuss the impact of the Civil Rights Act of 1991 upon future disparate impact cases and public policy.
The disparate impact theory was first articulated by the Supreme Court in 1971 in Griggs v. Duke Power Co. In this case job applicants were required to take a general intelligence test and produce a high school diploma, the effect being to disadvantage black applicants. The Court said that Title VII of the 1964 Civil Rights Act prohibited practices which are neutral in form but discriminatory in operation unless they are manifestly related to job capability. Employment selection procedures which, therefore, create an imbalance in the makeup of the defendant's workforce violate Title VII even though there may have been absolutely no intent to discriminate in adopting the procedures. In Griggs the court established the basic test for disparate impact which was used until Ward's Cove. The plaintiffs must first establish a prima facie case by showing that the defendant employer's hiring or promotion practices have discriminated against minorities protected by Title VII, resulting in the underrepresentation of such minorities in the job categories at issue. The defendant employer may then rebut this prima facie case by proving that the practices bear a "manifest relationship to the employment in question." In Griggs, the court said that the "touchstone" for this rebuttal is "business necessity;" this particular term has usually been interpreted as requiring a practice which is closely tailored to the employment goal of the defendant.
Before Wards Cove many federal courts were in disagreement as to the plaintiffs' initial burden of proof in establishing a prima facie case. Specifical...