Title 7 Disparate Impact Liability Makes Almost Everything Presumptively Illegal

The article revisits the 1971 Supreme Court decision in Griggs v. Duke Power Co., which — against the evidentiary record — interpreted Title VII to prohibit not only intentional discrimination but also disparate impact, subject to an affirmative defense of business necessity. It argues that nearly any job qualification used in real-world selection processes produces a disparate impact on some protected group, making almost all hiring practices presumptively illegal under this doctrine.

The piece then reviews the history of disparate impact liability, Congress's apparent acceptance of it in the 1991 Civil Rights Act, and the broad discretion it grants the EEOC. It specifically analyzes how disparate impact theory has been applied to criminal background checks in hiring, and lays out arguments questioning the doctrine's constitutionality.