The Invisible Ban: Negligent Disparate Impact

Abstract

The murder of George Floyd ignited a resurgence of civil rights activism. Spearheaded by Black Lives Matter, this movement has sparked a new dialogue to address racial inequities. In this current atmosphere of heightened awareness, Title VII of the Civil Rights Act of 1964 provides a unique opportunity to advance the cause of civil rights by expanding job opportunities for African Americans. As currently interpreted, Title VII provides two primary anti-discrimination theories: disparate treatment and disparate impact. Disparate-treatment law prohibits intentional employment discrimination against a member of a protected class. Disparate-impact law imposes strict liability on employers that use facially neutral employment practices that have a disproportionately adverse effect on a protected class. This Article suggests following the structure of tort law as a template for the law of employment discrimination. A comparison of Title VII to tort law reveals that an analogy to negligent torts is absent from Title VII. The means of rectifying this deficiency is clear. The very language of Title VII suggests the duty, causation, and injury elements of a claim of negligent disparate impact. Following the tort analogy, negligent disparate-impact claims would provide a more expansive array of remedies than those that are available under the current theory of disparate impact. Specifically, compensatory damages and a broad spectrum of equitable remedies would be available to victims of negligent disparate impact. In keeping with the negligence model, this Article then suggests how to adapt the business-necessity defense and the less discriminatory alternative doctrine to negligent disparate-impact theory. This Article concludes by pointing out the benefits of recognizing this claim. First, victims would be entitled to remedies that fit the level of wrongdoing, and enhanced remedies would incentivize victims to seek redress. The risk of such liability would spur employers to cleanse their workplaces of practices that might result in discriminatory outcomes. Negligent disparate-impact theory would therefore deter employment discrimination. Equally important, recognition of a claim for negligent disparate impact would reaffirm federal law’s dedication to achieving equal opportunity in the workplace.