Constitutionality of Disparate-Impact Liability Under Title VII

EEOC’s Title VII guidelines are unconstitutional because they contemplate liability based on disparate effects alone, without regard to an employer’s likely intent, and pressure employers to engage in race-based decisionmaking. Properly understood, disparate-impact liability proscribes only those practices that reflect a significant likelihood of intentional discrimination.

The business-necessity defense requires employers to demonstrate only that the challenged practice rationally serves a valid business purpose.

Workplace requirements and selection procedures—such as background checks, aptitude tests, and SAT scores—are presumptively job-related. Only irrational or arbitrary practices with no plausible job-relatedness can create disparate-impact liability.

Disparate-impact plaintiffs must both establish that the challenged employment practice specifically caused the alleged disparate impact and provide evidence that an equally effective alternative practice causes less disparate impact.