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D, Disparate Impact.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Disparate Impact.

Title VII of the *Civil Rights Act of 1964 prohibits overt and purposeful discrimination in employment. In *Griggs v. Duke Power Co. (1971), the Court held that the act “proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation” (p. 850). As modified and restricted by *Ward’s Cove Packing Co. v. Atonio (1989), the employee has the initial burden of proving that a facially neutral employment practice has a discriminatory effect. If the employer can furnish evidence of a valid business justification for the practice, the employee then bears the burden of showing that alternative practices, “without a similarly undesirable effect, would also serve the employer’s legitimate interest(s)” (*Albemarle Paper Co. v. Moody, 1975, p. 425).

Outside of the employment context, disparate impact (such as de facto school segregation or allegedly discriminatory voting districts) violates the Constitution only if it is shown to be intentional. However, section 2 of the *Voting Rights Act (as amended in 1982) permits a claim of discrimination without a showing of intent.

See also employment discrimination; race and racism.

Joel B. Grossman