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.
- atomicnumber3
I struggle a lot with the potentially nonzero overlap between
a) "just legislate that being racist/sexist to people is illegal, then have judges interpret" (which is what seems to be simply necessary to actually make progress against the endlessly inventive evil of racism/sexism),
and b) "but also don't simply make everything illegal because then abusers can selectively enforce the law to punish groups they dislike".
Tough. Gotta try, though.
- userbinator
Unfortunately the only way to have everyone "equal", seems to be to make everyone equally stupid. This idea has been explored in fiction, e.g. Harrison Bergeron.
- tbrownaw
I don't see a publish date on this? As I understand it, there have been recent shifts away from what's described and towards the relevant government agencies wanting more direct evidence of individuals being treated differently.