Round Three: Equal Protection as a Threat to Title Vii's Disparate Impact Standard

Abstract

The relationship between equal protection and disparate impact has been at the center of two constitutional controversies. In the first one, courts and commentators asked whether equal protection entailed a judicially enforceable disparate impact standard. Washington v. Davis answered that question, limiting self-executing equal protection to intentional discrimination and confining impact standards to the realm of statutes. More recently, developments since City of Boerne v. Flores have provoked a second round of evaluating the relationship between equal protection and disparate impact. This time, the question is whether statutes prohibiting disparate impact can be means of enforcing equal protection, and therefore valid as Section Five legislation, despite Davis's rule that judicially enforced equal protection does not entail a disparate impact standard.

This Article looks ahead to a third round. Given recent developments in cases construing equal protection, and in particular those cases limiting the scope of affirmative action, it is possible that equal protection will be interpreted to prohibit the passage of antidiscrimination statutes that use impact-based standards. Such a development could invalidate elements of several federal statutes, notably but not exclusively Title VII, as well as antidiscrimination statutes in at least twenty-four states.

The Article focuses on Title VII. It shows how four different concerns of equal protection doctrine - racial classifications, legislative motive, individualism, and expressive harm - could bear on and endanger Title VII's disparate impact provisions. The ultimate aim of the Article is to show how those provisions could survive an equal protection attack, though acknowledging that such survival is not guaranteed. But the Article also highlights some of the costs that saving disparate impact doctrine might entail. The disparate impact doctrine could probably be saved if it were interpreted to be merely a means of smoking out hidden intentional discrimination but such a move might sacrifice much of what makes the doctrine worth saving, i.e., its orientation toward the history of discrimination that causes good-faith acts in the present to perpetuate existing racial hierarchies. The Article therefore tries to identify ways in which disparate impact doctrine could survive without giving up its orientation toward redressing hierarchies that result from past discrimination.

Keywords: Equal protection, disparate impact, Title VII