From Wards Cove to Ricci: Struggling Against the Built-In Headwinds of a Skeptical Court

When the Supreme Court in 1971 first recognized disparate impact as a legal theory under Title VII, the Court explained that the absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability. Forty years later, it is the built-in headwinds of a Supreme Court skeptical of - perhaps even hostile to - the goals of disparate impact theory that pose the greatest challenge to continued movement toward workplace equality. The essay examines the troubled trajectory that disparate impact law has taken in the Court\u27s jurisprudence, considering how the Supreme Court, Congress, lower courts and employers all interact in the application and enforcement of the principles of equality underlying Title VII