Disparate Impact and the Unity of Equality Law

By Zatz, Noah D. | Boston University Law Review, July 1, 2017 | Go to article overview

Disparate Impact and the Unity of Equality Law


Zatz, Noah D., Boston University Law Review


INTRODUCTION

"We asked for workers, but people came."1 Workers have lives offthe job and life stories that precede it. This basic point confounds efforts to treat "the labor market" as a sphere unto itself, governed by its own logic and unconcerned with what lies outside.2 The fantasy of the self-regulating market attempts to assimilate labor and employment law by reducing it to the correction of "market failures," however broadly construed. Nowhere is that danger more evident than in employment discrimination law. The field faces persistent efforts to narrow its project to suppressing employer deviations from a profit-maximizing logic of the market sphere.3 The longstanding controversy over disparate impact liability exemplifies this dynamic.

Rejecting a market baseline, this Article develops a view of disparate impact liability as, at root, a challenge to separate spheres. That challenge clarifies and vindicates the core commitments of employment discrimination law writ large. Consider the concrete harm to individuals that makes disparate treatment so obviously an affront to equal freedom, and so straightforwardly grounded in statutory text. This injury of "status causation" arises when, in Title VII's words, an individual suffers workplace harm "because of such individual's race, color, religion, sex, or national origin."4 By attacking status causation, employment discrimination law seeks to conform our workplaces5 to a simple liberal ideal: nobody should enjoy lesser freedom because she is black rather than white, a woman rather than a man, and so on.6

The insight driving this Article is that status causation is not unique to disparate treatment (also known, misleadingly, as "intentional discrimination"7). Instead, it can arise through multiple mechanisms and can be detected through multiple methods of proof. The major types of discrimination claim-individual disparate treatment, nonaccommodation, systemic disparate treatment, and disparate impact8-track these variations. Each targets status causation in its own way. Identifying these variable means to a common end provides a framework for the field that makes sense of all the claims while giving primacy to none.

The time is ripe for this effort because antidiscrimination jurisprudence is in disarray. In cases such as Wal-Mart Stores, Inc. v. Dukes9 and Ricci v. DeStefano,10 the Supreme Court's most conservative wing moved to eviscerate longstanding forms of statutory liability that address structural bias in organizations. Then the Court pulled back from the brink. It preserved disparate impact claims under the Fair Housing Act.11 Also, under Title VII of the Civil Rights Act of 1964,12 it allowed the functional equivalent of denial of reasonable accommodation ("nonaccommodation") claims while muddying their distinction from disparate treatment.13 Unfortunately, in these latter cases neither the fragile liberal majorities nor any individual Justice articulated a clear, affirmative, expansive account of antidiscrimination law, one that could compete with the conservatives' cramped focus on discriminatory intent as the sine qua non.14 Instead, the opinions relied defensively on stare decisis and technicalities.15

This Article offers a new way forward. Part I begins by reviewing the prior demonstration16 that individual disparate treatment and nonaccommodation claims both revolve around status causation.17 One way for an employee's protected status to influence a workplace outcome is for an employer to consider that status when making a decision. Disparate treatment claims identify that mechanism, often characterized less technically as "discriminatory intent."18 Nonaccommodation claims identify another path to status causation. Consider the paradigmatic example under the Americans with Disabilities Act ("ADA"): an applicant loses a job because, without an accommodation, she cannot use a required tool, and she cannot do so because of her disability. …

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