The disparate impact doctrine emerged to more effectively remedy the policies and practices that cause or maintain disparities based on a protected class—even when the discriminatory intent is not explicit. Unlike individual disparate-treatment claims, disparate-impact claims more directly address and remedy implicit bias and discrimination. Although judicial hostility to robust enforcement of civil rights has diluted the power of the disparate impact doctrine in recent years, this vital doctrine still offers great promise to rectify past and ongoing wrongs. The disparate impact doctrine continues to be an essential tool for accomplishing what has eluded the nation to date: wholesale eradication of discrimination based on a protected class.
This article considers the continuing importance of the disparate impact doctrine and how it has been severely limited by extremist interpretation. In Part II, this article introduces the origins of the disparate impact doctrine, highlighting the reasons for a progressive application that are as relevant today as when the Supreme Court adopted the doctrine fifty years ago. Part III discusses the politically orchestrated attacks on the disparate impact doctrine. Part IV analyzes the barriers that judicial activists have erected against a meaningful application of the disparate impact doctrine. Part V discusses recent positive developments in the application of the disparate impact doctrine, including the Supreme Court explicitly recognizing the existence of, and need to remedy, “unconscious prejudice.” This article concludes by calling for an application of the disparate impact doctrine that returns to Congress’s manifest intent when it enacted the nation’s leading civil rights statutes and that comports with the Supreme Court’s clear precedent when it first adopted the doctrine. In this way, the American Dream can become a reality for everyone, instead of primarily for the privileged.