When the Court Makes Title VII Law and Policy: Disparate Impact and the Journey from Griggs to Ricci

(Excerpt) This Article focuses on judicial lawmaking and policymaking in an important area of antidiscrimination law—Title VII of the Civil Rights Act of 1964’s regulatory regime. As enacted in 1964, Title VII only prohibited intentional employment discrimination on the basis of race, color, religion, sex, or national origin. The statute requires a finding that an employer “has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint.” “[Such] ‘disparate treatment’ . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others . . . . Proof of discriminatory motive is critical . . . .” Thereafter, in Griggs v. Duke Power Co., the United States Supreme Court held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Title VII claims alleging such “ ‘disparate impact’ . . . involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” The Court held, “Proof of discriminatory motive . . . is not required under a disparate-impact theory.