The War between Disparate Impact and Equal Protection
نویسندگان
چکیده
Title VII of the Civil Rights Act of 1964 forbids job discrimination based on race, color, religion, sex, or national origin.1 Title VII was originally enacted as a regulation of interstate commerce and applied only to private employers. In 1972, however, the Act was extended to the public sector pursuant to Congress’s Fourteenth Amendment authority to ensure that ‘‘[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.’’ Because the Equal Protection Clause was intended to guarantee equal opportunities rather than equal outcomes, the Supreme Court’s application of that clause has focused on intentional discrimination. Title VII initially barred only disparate treatment, which encompasses only such intentional discrimination and, under some interpretations, also unconscious bias. But under Title VII, Congress expanded the reach of anti-discrimination litigation: Employers may be held accountable not only for disparate treatment, but also for disparate impact, which refers to discriminatory effects arising out of workplace policies or procedures, even when an intent to discriminate cannot be proven. On its face, the New Haven firefighters’ case, Ricci v. DeStefano, is about the tension between these two sides of Title VII.2 At root, however, the real war is between disparate impact and the Equal Protection Clause.
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تاریخ انتشار 2009