Disparate-Impact Liability - A Quiet Champion for Civil Rights

The Civil Rights Tool You've Probably Never Heard Of—And Why It Deserves Attention

In the early 1970s, a North Carolina power company required job applicants to pass a high school exam and an intelligence test to qualify for better-paying jobs. The policy didn't mention race, but in practice, it excluded many Black workers who had been denied equal educational opportunities. The Supreme Court struck it down, not because of intent, but because of impact. That case, Griggs v. Duke Power Co., helped establish one of the most critical civil rights protections many people have never heard of: disparate-impact liability.

Disparate-impact liability is a legal concept that ensures policies don't unintentionally create barriers for protected groups. Though it's been part of U.S. civil rights law for over 60 years (Civil Rights Act of 1964), it's now the subject of renewed debate following a recent executive order that changes how federal agencies use this framework. Regardless of politics, it's worth taking a moment to understand what this tool is—and why it has long played a role in making opportunity more equitable.

Disparate-impact liability doesn't require proving that someone intended to discriminate. It focuses on the effects of neutral policies. For example, suppose a physical strength test screens out women for warehouse jobs, or a school rule leads to much harsher discipline for Native American students. In that case, those policies can be examined for unintended barriers.

This isn't about assigning blame. It's about identifying situations where outcomes consistently disadvantage a group, and asking: Is this policy essential? The law sets a clear bar: plaintiffs must show that a policy has a statistically significant disparate effect, and that no business necessity justifies it. If the employer can show the policy is essential—say, that a lifeguard must be able to swim—it stands.

Disparate-impact liability is not new or radical. It was first recognized by the Supreme Court in Griggs (1971), then narrowed in Wards Cove (1989), and later strengthened in the 1991 Civil Rights Act, signed by President George H.W. Bush. That law raised the standard for employers, requiring that any policy with a disproportionate impact be job-related and consistent with business necessity.

Later cases, such as Ricci v. DeStefano (2009) and Texas Department of Housing v. Inclusive Communities (2015), further defined the boundaries of this doctrine. Across decades and across administrations, it has remained a tool for evaluating whether policies work fairly for everyone.

Although much of the current conversation focuses on race, the doctrine of disparate impact has been used in cases involving gender, age, national origin, religion, and even disability. It applies when a neutral policy consistently produces unequal outcomes for protected groups.

Recent federal guidance changes mean agencies may deprioritize this standard's enforcement. This could impact how future education, housing, and employment cases are investigated. However, it's important to note that Title VII of the Civil Rights Act of 1964 remains in full effect, and many states continue using disparate-impact analysis as part of their civil rights enforcement.

To be sure, some have raised concerns that disparate-impact liability overemphasizes statistics or pressures organizations to make decisions based on outcomes alone. But courts require more than numbers: plaintiffs must show a causal connection between the policy and the outcome, and that no strong justification exists. That's a high legal bar—one reason many disparate-impact claims do not succeed.

When such claims prevail, it's typically because a policy causes measurable harm and lacks a clear rationale. This doctrine doesn't presume guilt—it asks for reflection. Like Griggs, today's policies can still unintentionally exclude people from opportunities. Disparate-impact liability doesn't accuse—it illuminates. It's a way to evaluate whether our systems are living up to their promises, and to make adjustments when they're not. Civil rights law has always ensured equal access, not just equal intent. Disparate-impact liability helps us look beyond assumptions and examine outcomes, so that fairness isn't something we hope for, but something we build.