Disparate Impact in the Private Sector
A Theory Going Haywire

Preface

Can employers be held liable for discriminating without having the intent to discriminate? The answer is yes. This may make little sense, but the disparate-impact theory of discrimination holds that when an action has a disproportionate effect on a group, it can be challenged as illegal discrimination. Unlike disparate treatment, where intent is required, a perfectly innocent employer can be held liable for discrimination.

One possible basis for this legal theory is the fear that a qualification imposed by an employer is simply being used as a proxy for discriminating against a group. While this is a legitimate fear, the disparate-impact theory continues to be used in a manner that far exceeds the legitimate purpose of countering hidden discrimination.

Civil rights protections are absolutely necessary, and those that discriminate intentionally should be liable. Our society is premised on inclusion and equal opportunity. However, disparate impact is being used to ensure equal results, not equal protection under the law. This legal theory is being used in various lawsuits, from employment to voting rights cases, thereby pervading every aspect of our society.

In this important monograph, the author, Roger Clegg, explains in detail the disparate-impact theory. He illustrates how the doctrine has been applied to the private sector, discusses arguments both in favor and in opposition to the doctrine, and recommends how this approach to civil rights law can be curtailed.

This book, like all of the monographs published by the National Legal Center, is presented to encourage greater understanding of legal issues. It is not intended to influence legislation but to enlighten its readers through the thought, experience, and knowledge of others. The views expressed in this monograph are those of the author and do not necessarily reflect the opinion or position of the advisors, officers, or directors of the National Legal Center. This publication is presented purely as an educational public service.

Ernest B. Hueter
President
National Legal Center

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