Disparate impact
Criticism

The disparate impact theory is in contrast with disparate treatment provisions under civil rights laws as well as the U.S. Constitution's guarantee of equal protection. For example, if an hypothetical fire department used a 100-pound test, that policy might disproportionately exclude female job applicants from employment. Under the 80% rule mentioned above, unsuccessful female job applicants would have a prima facie case of disparate impact "discrimination" against the department if they passed the 100-pound test at a rate less than 80% of the rate at which men passed the test. In order to avoid a lawsuit by the female job applicants, the department might refuse to hire anyone from its applicant pool—in other words, the department may refuse to hire anyone because too many of the successful job applicants were male. Thus, the employer would have intentionally discriminated against the successful male job applicants because of their gender, and that likely amounts to illegal disparate treatment and a violation of the Constitution's right to equal protection. In the 2009 case Ricci v. DeStefano, the U.S. Supreme Court did rule that a fire department committed illegal disparate treatment by refusing to promote white firefighters, in an effort to avoid disparate impact liability in a potential lawsuit by black and Hispanic firefighters who disproportionately failed the required tests for promotion. Although the Court in that case did not reach the constitutional issue, Justice Scalia's concurring opinion suggested the fire department also violated the constitutional right to equal protection. Even before Ricci, lower federal courts have ruled that actions taken to avoid potential disparate impact liability violate the constitutional right to equal protection. One such case is Biondo v. City of Chicago, Illinois, from the Seventh Circuit.
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