Supreme Court's Disparate Impact Ruling Makes Nearly All Job Requirements Presumptively Illegal
Title 7 Disparate Impact Liability Makes Almost Everything Presumptively Illegal
In Griggs v. Duke Power Co. (1971), the Supreme Court interpreted Title VII to prohibit not just intentional discrimination but also disparate impact, subject to a business necessity defense. This interpretation, against the weight of evidence, means nearly any job qualification can have a disparate impact on some protected group. The article explores the history of this liability, Congress's 1991 acquiescence, the EEOC's broad discretion, its application to criminal background checks, and constitutional arguments.
It is difficult to come up with a job qualification that has been actually used to select one job applicant over another that does not have a disparate impact on some group.