Is the Road to Disparate Impact Paved with Good Intentions: Stuck on State of Mind in Antidiscrimination Law
![handle is hein.journals/wflr42 and id is 1149 raw text is: IS THE ROAD TO DISPARATE IMPACT PAVED WITH
GOOD INTENTIONS?: STUCK ON STATE OF MIND
IN ANTIDISCRIMINATION LAW
Stacy E. Seicshnaydre*
INTRODUCTION
I'm just a soul whose intentions are good
Oh Lord, please don't let me be misunderstood'
The disparate impact theory of liability in antidiscrimination
law is in its fourth decade of doctrinal development, but the theory
remains misunderstood, mislabeled, and misused.2 Although the
effects-based theory emerged as a method of proof theoretically
unconcerned with the concept of intent-whether of the good or
bad variety-all of the stakeholders using the disparate impact
theory have remained stuck on state of mind.3 This Article
examines the particular way in which the focus on the defendant's
state of mind in disparate impact cases has helped undermine the
theory, despite the belief of many theorists that a thorough
grounding in intent may be necessary to ensure the theory's
survival.4 This Article explores both housing and employment
* Associate Professor of Law, Tulane University Law School. The Author
would like to thank Bob Schwemm, Steve Dane, and Joel Friedman for their
thoughtful editorial suggestions, as well as Aaron Greenbaum, Kevin
McCormick, Sara Porsia, and Natalie Sexsmith for their excellent research
assistance. The Author would also like to express appreciation to Tulane Law
School for summer research grants that supported the work on this article and
the Southeastern Association of Law Schools for providing the opportunity to
present the paper at a New Scholars Workshop. Special thanks to G.E. and
M.C.
1. THE ANIMALS, Don't Let Me Be Misunderstood, on ANIMAL TRAcKS
(MGM Records 1965).
2. See Charles A. Sullivan, The World Turned Upside Down?: Disparate
Impact Claims By White Males, 98 Nw. U. L. REV. 1505, 1521 (2004) ([I]t is safe
to say that disparate impact theory remains a complicated and confusing
doctrine.).
3. See infra Part I.
4. See, e.g., infra Part I.C.
1141](ViewImageLocal?handle=hein.journals/wflr42&div=35&collection=&method=preview&ext=.png&size=3)
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Is the Road to Disparate Impact Paved with Good Intentions: Stuck on State of Mind in Antidiscrimination Law
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