73 Va. L. Rev. 1297 (1987)
Disparate Impact under Title VII: An Objective Theory of Discrimination

handle is hein.journals/valr73 and id is 1307 raw text is: DISPARATE IMPACT UNDER TITLE VII:
AN OBJECTIVE THEORY OF DISCRIMINATION
George Rutherglen*
T HE theory of disparate impact is the single most important
judicial contribution to title VII of the Civil Rights Act of
1964.' In enacting title VII, Congress extended the constitutional
prohibition against discrimination in two directions: to private em-
ployers,2 and to discrimination on the basis of sex,s the latter sev-
eral years before constitutional law was to develop a similar prohi-
bition.4 In Griggs v. Duke Power Co.,5 the United States Supreme
Court extended title VII in yet another direction: to facially neu-
tral employment practices with an adverse impact on persons of a
particular race, national origin, sex, or religion.
Under Griggs, the plaintiff need only prove adverse impact. If
the plaintiff carries this burden, the defendant must prove that the
disputed employment practice is justified by job relationship or
business necessity.7 Compared to a theory of intentional discrimi-
* Professor of Law, University of Virginia. I would like to thank William Eskridge, John
Monahan, Stephen Saltzburg, and Laurens Walker for their comments on an earlier draft of
this article.
1 42 U.S.C. §§ 2000e-2000e-17 (1982).
2 See Civil Rights Act of 1964, Pub. L. No. 88-352, § 701(a)-(b), 78 Stat. 241, 253-54
(codified as amended at 42 U.S.C. § 2000e(a)-(b) (1982)). The act also extended the prohibi-
tion to employment agencies, unions, and joint labor-management committees. See id. §§
701(c)-(d), 703(d), 78 Stat. 241, 254, 256 (codified as amended at 42 U.S.C. §§ 2000e(c)-(d),
2000e-2(d) (1982)). As originally enacted, title VII covered only private employers. See id. §
701(a)-(b), 78 Stat. 241, 253-54 (codified as amended at 42 U.S.C. § 2000e(a)-(b) (1982)). In
1972, it was amended to cover state and local governments and the federal government. See
Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, §§ 2, 11, 86 Stat. 103, 103,
111-12 (codified at 42 U.S.C. §§ 2000e(a)-(b), 2000e-16 (1982)).
3 See Civil Rights Act of 1964, Pub. L. No. 88-352, § 703(a)-(d), 78 Stat. 241, 255-56
(codified as amended at 42 U.S.C. § 2000e-2(a)-(d) (1982)).
' The Supreme Court first held sexual discrimination to be unconstitutional in Reed v.
Reed, 404 U.S. 71 (1971).
5 401 U.S. 424 (1971).
* See id. at 429-33.
7 See id. at 431-32. In theory, if the defendant carries its burden, the burden shifts back
to the plaintiff to prove pretext. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425
(1975). But in practice, plaintiffs have almost never carried this burden. See infra note 124

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