Abstract
The disparate impact theory long has been viewed as one of the most important and controversial developments in antidiscrimination law. In this Article, Professor Selmi assesses the theory’s legacy and challenges much of the conventional wisdom. Professor Selmi initially charts the development of the theory, including a close look at Griggs v. Duke Power Co. and Washington v. Davis, to demonstrate that the theory arose to deal with specific instances of past discrimination rather than as a broad theory of equality. In the next section, Professor Selmi reviews the success of the theory in the courts through an empirical analysis and concludes that it has had a strikingly limited impact outside of the context of written employment tests and is, in fact, an extremely difficult theory on which to succeed. In the final section, Professor Selmi contends that whatever gains the disparate impact theory has produced likely could have been obtained through other means, particularly in large urban cities, and that the theory may have had the unintended effect of limiting our conception of intentional discrimination. Disparate impact theory always has been seen as beginning where intentional discrimination ends, and by pushing an expansive theory of impact, we were left with a truncated theory of intentional discrimination that continues to turn on animus and motive. Rather than a new legal theory of discrimination, Professor Selmi concludes, a greater societal commitment to remedying inequities was needed, as the ultimate mistake behind the disparate impact theory was the belief that legal theory could do the work that politics could not.
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