The disparate impact strand of antidiscrimination law provides the possibility of challenging harmful employment, education, housing, and other public and private policies and practices without the often-difficult burden of proving intentional discrimination. And yet the disparate impact standard seems to be facing its own burdens. Rulings by the Supreme Court in recent years have shaken the disparate impact standard's footing. In Ricci v. De- Stefano,1 the Court rejected a frontal assault to the disparate impact standard under Title VII of the Civil Rights Act of 1964,2 but cast the standard as at odds with Title VII's true core - its prohibition of intentional discrimination. 3 In its 2001 decision in Alexander v. Sandoval,4 the Court refused to allow private enforcement of the disparate impact regulations issued pursuant to Title VI of the Civil Rights Act of 1964,5 and though it assumed the validity of these regulations, the Court noted their "considerable tension" with the dictates of the statute. 6Then, in May 2013, the Court granted certiorari on the validity of the federal courts' longstanding interpretation of the Fair Housing Act ("FHA") to prohibit unjustified disparate impacts in Township of Mount Holly, New Jersey v. Mt. Holly Gardens Citizens in Action, Inc.7 The Supreme Court appeared poised to decide the question, but the case was settled by the parties shortly before oral argument.8 The Supreme Court has had past waves of skepticism about the doctrine. The Court's 1989 opinion in Wards Cove Packing Co. v. Atonio9 made it harder for plaintiffs to establish disparate impact claims;10 congressional rejection of this decision spurred the 1991 Civil Rights Act's codification of a burden-shifting standard for Title VII.11 Indeed, even commentators supportive of disparate impact's inclusionary goals question the efficacy of the disparate impact standardl2 and ask whether the standard detracts from the assumed more important goal of addressing intentional discrimination.13
This Article argues that casting disparate impact as a disfavored, illegitimate, judicially created branch of antidiscrimination law fails to grapple adequately with disparate impact's longstanding roots as a tool employed by agencies to implement statutory antidiscrimination precepts. Nor does this view fully appreciate the continuing role that federal administrative agencies play in shaping the meaning of disparate impact today. Investigating the role of agencies in shaping disparate impact has new urgency: the Department of Housing and Urban Development ("HUD") recently promulgated regulations formalizing the FHA's disparate impact standard.14The rule's legality as well as its broader legitimacy crucially depend on one's view of agencies' formal powers, expertise, and capacity to define and shape disparate impact. This rulemaking brings to the fore the role of civil rights and federal agencies in shaping and interpreting disparate impact.
The new FHA regulations, I suggest, provide an occasion to examine afresh the disparate impact standard's origins in agency lawmaking and practice. Understanding the role of agencies in developing and shaping disparate impact standards has the potential to shore up the disparate impact standard's seemingly shaky normative foundations in a number of key ways. For one, including agencies in our account allows us to understand disparate impact not as a separate offshoot of antidiscrimination law invented by courts, but as a reasonable agency implementation choice given the potentially broad and conflicting meanings of the antidiscrimination directive of civil rights law. Agencies, not courts, first developed disparate impact under the Civil Rights Act of 1964, and, under standard administrative deference principles, agencies have authority to define the capacious term "discrimination" to include disparate impact.15 In addition, agencies' implementation of disparate impact draws on their distinctive set of competencies relative to courts. For instance, in the context of fair housing, HUD's promulgation of disparate impact rules has the capacity to stabilize disparate impact law and to provide clarity to regulated entities subject to different judicial standards. Disparate impact's fate is intimately connected with civil rights' hybrid enforcement regime - one that lodges implementation power not just in courts, but also in agencies.
Olatunde C. Johnson,
The Agency Roots of Disparate Impact,
Harv. C.R.-C.L. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1099