Disparate Impact

Most discrimination claims require showing that someone was treated differently because of a protected trait. Disparate impact is different: it targets neutral rules that fall much more heavily on one group, such as a test or requirement that screens out far more Black applicants, unless the rule is justified by business necessity and no less harmful alternative exists. The Supreme Court adopted the theory under Title VII in Griggs v. Duke Power in 1971, striking down a high school diploma requirement and aptitude tests unrelated to the jobs.

Congress wrote disparate impact into Title VII in the Civil Rights Act of 1991, after a 1989 ruling had made such claims harder. The Supreme Court recognized it under the Fair Housing Act in 2015 and it appears in age discrimination law, while federal agencies long applied it under Title VI rules to programs receiving federal money, and in lending and other areas. In 2001 the Court held that private parties cannot sue to enforce those Title VI rules.

An executive order in April 2025 directed federal agencies to stop using disparate impact in enforcement wherever possible, and to repeal or amend regulations based on it. The EEOC closed pending charges based only on disparate impact, and the Justice Department moved to remove it from its Title VI rules. Supporters of the theory say it is needed to catch hidden or structural discrimination. Critics say it pushes employers and others toward racial balancing and quotas and conflicts with equal treatment. Statutory claims under Title VII and the Fair Housing Act remain available in court.