The Public Interest

The bad law of “disparate impact”

Roger Clegg

Winter 2000

THE “disparate impact” theory of discrimination is curious, ubiquitous, and mischievous.  The theory holds that when an action has a disproportionate effect on some group (racial, ethnic, gender, whatever), it can be challenged as illegal discrimination—even if there was no discriminatory intent. This is quite different from a “disparate treatnaent” lawsuit, where the plaintiff must prove that the defendant treated him worse because of a particular characteristic.

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