A Social Movement History of Title VII Disparate Impact Analysis

The U.S. Supreme Court’s recent opinion in Ricci v. DeStefano suggests trouble ahead for disparate impact analysis under Title VII of the Civil Rights Acts of 1964 and 1991. Commentators, too, have begun to question the policy bases for this doctrine. Part of the current tenuousness surrounding disparate impact analysis, which the Court first approved in its 1971 opinion in Griggs v. Duke Power Company, stems from assumptions that the EEOC pursued this theory as a last-minute, ill-conceived afterthought that was not in keeping with Congress’s intent when it passed Title VII in 1964. In this Article I use the methodology of social movements theory to cast a different light on the history of disparate impact analysis. Disparate impact analysis asks employers to evaluate whether their employment practices pose barriers to the employment opportunities of traditionally excluded outsiders and, if so, to replace such practices with alternative effective practices with less exclusionary effect. Disparate impact analysis thus augments federal employment anti-discrimination law by introducing a structural approach alongside an intent-based standard that focuses exclusively on detecting invidious motives buried in individual decision-makers’ hearts. In this Article I trace concerns about tackling structural race discrimination in employment to the early history of civil rights activism. I locate the origins of disparate impact analysis in civil rights activists’ long-held understandings about the structural nature of racial employment subordination. Throughout a long historical period, employment subordination based on race was pervasive and unremitting, enforced by a complex of institutions including law, tradition, and white violence insisting on a “whites only” rule for desirable jobs. These forces imposed a tight structural block on the employment advancement of persons of color, and civil rights activists therefore aimed their efforts at achieving broad-scale reform of these institutional barriers. Law also shaped the strategies of these early civil rights activists. In the late nineteenth and early twentieth centuries, the relevant legal question had nothing to do with the intent versus effects tests so heatedly debated today. Instead, two lines of the Court’s jurisprudence were important: its Post Reconstruction civil rights jurisprudence, which limited the reach of anti-discrimination law to state actors; and its Lochner Era employment law jurisprudence, which recognized a natural law “freedom of contract” right barring most forms of state regulation of the employment relationship. These two lines of caselaw defined the sphere of private employment as largely unreachable through federal or state law. Activists accordingly concentrated their efforts on inducing employers to voluntarily reform their workplace hiring and promotion practices. The end of the Lochner Era paved the way for New York State’s passage of the first employment anti-discrimination statute to reach the private sector. State agency officials charged with the statute’s enforcement, some recruited from the ranks of the activists responsible for the statute’s enactment, continued to experiment with methods of inducing employers – now with the background threat of legal action to encourage compliance – to make broad-scale institutional change by examining traditional employment practices to find ways to eliminate barriers to racial inclusiveness. By the time Congress began to debate Title VII’s passage, at least several prototypical disparate impact cases had emerged from state fair employment agencies. After the legislation’s enactment, the EEOC followed in the footsteps of state fair employment agencies by focusing its efforts on promoting broad-scale institutional reform. The EEOC encouraged employers in targeted industries to engage in self study to identify employment practices, such as testing and other selection devices, that could be reformed to increase employment opportunities for racial minorities. At the same time, the NAACP and others successfully litigated a number of disparate impact cases in the lower courts. At all these stages, civil rights activists and those charged with implementing statutes enacted as a result of these activists’ efforts developed and passed on ideas now embedded in the current statutory articulation of the disparate impact doctrine. Disparate impact analysis thus was not a last-minute afterthought, unwittingly endorsed by the U.S. Supreme Court, but the product of a sustained social movement effort over decades of theorizing and experimentation. In sum, my account adds important historical context to the current debate about the continued viability of Title VII disparate impact analysis and also illustrates the potential substantive payoff of a social movement focus on the development of public law.