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What Is Disparate-Impact Discrimination? – Analysis

 July 10, 2025

By CRS

By April J. Anderson

Many federal antidiscrimination laws encompass two theories of discrimination: disparate treatment and disparate impact. Disparate-treatment discrimination involves intentional harm based on race, sex, disability, or some other proscribed motive. Disparate-impact discrimination occurs when a seemingly neutral policy or action causes a disproportionate and unjustified negative harm to a group, regardless of intent.

Statutes That Allow Disparate-Impact Liability

Constitutional discrimination claims, grounded in the Fifth and Fourteenth Amendments, must assert intentional discrimination, not just disparate impact. Disparate-impact claims are permitted, however, under some antidiscrimination statutes. 

The disparate-impact theory of liability was first applied in the Supreme Court’s 1971 interpretation of Title VII, which bars employment discrimination. In Griggs v. Duke Power Co., the Court concluded that a power company used job criteria that disproportionately eliminated Black applicants but were not “significantly related to successful job performance” and did not advance the company’s asserted goal of facilitating promotions within the company. The Court held that the policy violated the statute, saying that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” In 1991, Congress amended Title VII, codifying the theory and laying out the burden-shifting framework described above. 

In addition to Title VII, court opinions and agency regulations have applied the disparate-impact theory to discrimination under other statutes, including age discrimination under the Age Discrimination in Employment Act, lending discrimination under the Equal Credit Opportunity Act, and housing discrimination under the Fair Housing Act (FHA). In the FHA context, the Supreme Court stated that “zoning laws and other housing restrictions that unfairly exclude minorities from certain neighborhoods without sufficient justification” are at the heart of disparate-impact liability. The Americans with Disabilities Act (ADA) also bars disparate-impact discrimination in public accommodations, disallowing criteria “that have the effect of discrimination on the basis of disability.” 

Depending on the underlying statute, there may be procedural differences between disparate-impact and disparate-treatment claims. Under Title VII of the Civil Rights Act of 1964, for example, a disparate-impact finding does not allow for damages as a disparate-treatment claim does.

The availability of disparate-impact liability under certain other antidiscrimination laws is unclear. For example, whether disparate-impact liability exists under the Rehabilitation Act has yet to be conclusively decided. 

Finally, some antidiscrimination statutes clearly do not include disparate-impact liability. At times, as with the Genetic Information Nondiscrimination Act, Congress has expressly barred disparate-impact claims. The Supreme Court has also concluded that one wide-ranging statute, Title VI of the Civil Rights Act of 1964, does not support disparate-impact claims. This statute reaches public programs that accept federal funding (e.g., in education, transportation, and health care) and bars discrimination based on race or national origin. After initially appearing to allow disparate-impact claims under Title VI, the Supreme Court later concluded that statute’s central provision does not support disparate-impact claims; thus, private plaintiffs may not bring disparate-impact suits under Title VI. 

Disparate-Impact Regulations

Even though it disallowed private disparate-impact suits under Title VI, the Supreme Court has left open the question of whether federal agencies may issue and enforce Title VI regulations requiring grantees to avoid disparate impacts. 

In the absence of a definitive ruling on the question, grant-administering agencies have promulgated such Title VI disparate-impact regulations and developed internal guidance for enforcing these regulations. The Department of Education, for example, issued guidance in 2014 urging schools to avoid disparate impacts in school discipline. In 2023, in response to a complaint, the department began to investigate the potential disparate impact of universities’ legacy admissions. Many agencies also have enforced Title VI to support language–access requirements, as offering services only in English may exclude people based on national origin. 

Proving a Disparate-Impact Claim

Courts decide disparate-impact claims using a burden-shifting framework, sometimes called an “effects test.” To start, plaintiffs must identify the specific practice or policy (such as a loan approval or leasing rule) that is responsible for a discriminatory, or adverse, effect. Then they must meet a “robust causality requirement,” meaning that they must show more than a mere imbalance by sex or race, for example; they must show that the policy or practice identified causes that difference. There is no liability “based solely on a showing of a statistical disparity.” 

The discriminatory effect must also be substantial. In the employment discrimination context, for instance, Equal Employment Opportunity Commission regulationsgenerally require disparate-impact claims to show that employees of a certain group are selected at a rate that is less than 80% of the selection rate for the most selected group. 

Once the plaintiff has shown that a policy causes a significant adverse effect, the burden shifts to the defendant to confirm that its challenged policy is justified. This confirmation may vary according to the context; in employment, for example, it should be job related and consistent with business necessity. If the defendant makes this showing, a plaintiff may still prevail if it proves that a less discriminatory policy would meet the business need. On the whole, observers have noted, disparate-impact cases are difficult to prove.

How might the effects test play out? Suppose a stockroom employer requires workers to be at least six feet tall. Applicants point out that the policy excludes far more women than men—that is, there is a discriminatory effect. The employer would then have to demonstrate that the height requirement is needed for a substantial, legitimate reason (so that workers can efficiently reach all the stockroom shelves, for example). Assuming such a showing were made, the applicants could still prevail by showing that there is a less discriminatory alternative (using step stools, possibly) that could meet the employer’s needs. 

Practical and Constitutional Issues

Many debate the value of disparate-impact laws and regulations. According to proponents, they help ferret out actions taken with hidden discriminatory motives and help eliminate vestiges of past discrimination. Critics claim that disparate-impact liability unduly burdens decisionmakers, who may not know in advance which policies will have a disparate impact and may have no role in creating societal conditions underlying the disparities. As Justice Scalia opined, decisionmakers trying to avoid disparate-impact liability might themselves make problematic, perhaps even unconstitutional, race-based decisions. Constitutional equal protection principles forbid government actors from making race-based decisions except in narrow circumstances. This restriction applies even if the government seeks to benefit a disadvantaged racial group. 

The Supreme Court addressed this problem in a case where a police department threw out the results of a promotion examination because it had a racial disparate impact on Black and Hispanic officers—a disparity that the police department wanted to circumvent. White officers who had studied for the test, taken it, and passed it sued on the grounds that they were entitled to rely on the results. In their view, the department could not throw out test results for race-based reasons because this would be disparate treatment. The Court ruled in favor of the White officers and explained that an employer may only make a race-based decision, such as the one to discard test results because of a racially disparate impact, if “there is a strong basis in evidence” of an unjustified disparate impact. The department, in the Court’s view, had not proven that the promotion exam was not job related or that it was inconsistent with business necessity.

Recent Changes in Enforcement

Recent executive action is changing how agencies address disparate impact. In an executive order entitled “Restoring Equality of Opportunity and Meritocracy,” the Trump Administration stated its intent “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible,” calling on agencies to “deprioritize” disparate-impact enforcement and revoking presidential approval of certain disparate-impact regulations. This action may prompt agencies to change their disparate-impact guidance and regulations and dismiss or narrow pending cases. 

Administrative changes could be particularly salient in regulating decisionmaking algorithms or artificial intelligence (AI). Agencies have previously noted that landlords, lenders, and employers could be liable for the technologies’ disparate impacts. Guidance to this effect, however, has been removed from agency websites. Deprioritizing disparate-impact enforcement may also affect agencies’ Title VI language-access efforts, which relied on a theory that limited language resources have a discriminatory effect based on national origin. 

In all, because agencies’ administrative enforcement is such a big part of disparate-impact law, especially under Title VI, the “Restoring Equality of Opportunity and Meritocracy” executive order may significantly curtail disparate-impact enforcement. Still, as some observers have pointed out, the executive order does not impact the ability of private litigants to pursue disparate-impact claims, particularly where disparate-impact theories are well established (such as under Title VII and the FHA). 

Considerations for Congress

Given judicial treatment of Title VI—barring private disparate-impact suits and leaving in question disparate-impact regulations—Congress may consider amending the statute. It could, as has been previously proposed, codify a private right of action to sue federally funded entities for disparate impact, as already exists under Title VII for employers. For Title VI, and perhaps for other statutes, Congress could also specify available remedies for disparate-impact violations or separately address specific contexts, such as language access or AI.

Conversely, Congress could abolish or restrain certain disparate-impact theories, as by barring agencies from promulgating and enforcing Title VI disparate-impact regulations. In addition, Congress could consider amending other civil rights statutes to eliminate or limit disparate-impact causes of action. This would entail removing disparate-impact provisions where they exist and adding language to bar disparate-impact claims where they have been judicially recognized. Beyond legislation, Congress also exercises oversight of the agencies charged with enforcing Title VI and other civil rights laws.

• About the author: April J. Anderson, Legislative Attorney

• Source: This article was published by the Congressional Research Service (CRS).

CRS

The Congressional Research Service (CRS) works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. As a legislative branch agency within the Library of Congress, CRS has been a valued and respected resource on Capitol Hill for nearly a century.

 

Forgotten Swiss Peace Pact Has Lessons For Europe On Ending Bloodshed – Analysis

Among the delegates at Locarno were British foreign secretary Austen Chamberlain, his French and German counterparts Aristide Briand and Gustav Stresemann, respectively, and Italian prime minister Benito Mussolini. Photo Credit: City of Locarno Archives

 July 10, 2025 

By SwissInfo

Hailed in 1925 as a diplomatic triumph, the Locarno Pact – named after the Swiss city where it was negotiated – ushered in a brief period of peace after the First World War. What can today’s peacemakers learn as Europe once again deals with war, rising American isolationism, and shifting power among the great states? 

By Geraldine Wong Sak Hoi 

Popular histories mark the end of the First World War with the Treaty of Versailles in 1919, when Germany was forced to accept responsibility for the bloodiest conflict then known.

Yet many historians argue that a true settlement was only reached six years later in Switzerland. There, diplomats spent ten days hammering out treaties of the lesser-known Locarno Pact. The main signatories, Germany, France, Britain, Italy and Belgium, renounced force in all cases but self-defence.

The Pact was celebrated as a diplomatic milestone, capping years of confrontation between the major European powers.

“It was the most fundamntal agreement for the stabilisation of Europe after World War I,” said Sacha Zala, director of the Diplomatic Documents of Switzerland (Dodis) research centre.

The Pact confirmed Germany’s borders with France and Belgium and reaffirmed the demilitarised status of the Rhineland established at Versailles. It was significant enough to earn the main negotiators – the foreign ministers of France, Germany and Britain – the Nobel Peace Prize.

But reconciliation was short-lived. In 1936, Adolf Hitler, by then chancellor of Germany, broke the accord by sending troops into the Rhineland. The Second World War erupted just three years later.

Now, on the centenary of the Pact and with Russia waging a war of attrition in Ukraine on Europe’s eastern flank, experts believe that Locarno offers lessons – both constructive and cautionary – for how to once again bring peace to the continent.

Securing Europe as the US turns away

One thing that Europe can relearn is to avoid relying on the United States for its security. After fighting alongside the British and French during the First World War, the Americans refused to sign the Treaty of Versailles or join the League of Nations, even though President Woodrow Wilson had been a leading architect of the precursor to the United Nations.

While the US pursued an isolationist policy and stayed away from Locarno, the European states negotiated amongst themselves. Under the Pact, Germany agreed to resolve any territorial disputes with France, Belgium, Czechoslovakia and Poland through independent arbitration, with mediation by a neutral third party. Locarno paved the way for Germany to join the League of Nations the following year.

“The key powers were talking about peace for the peoples of Europe – there was a lot of reference to Europe as this kind of collective entity,” said Peter Jackson, a history professor at the University of Glasgow and an expert on the interwar period.

The echoes reverberate today. A US turn away from Europe, particularly under the presidency of Donald Trump, is again being felt. The president has created a transatlantic rift by imposing trade tariffs, forcefully accusing allies of spending too little on defence, and threatening to withdraw US troops stationed on the continent. This has created uncertainty among North Atlantic Treaty Organization (NATO) allies over whether the US would fulfil its obligation to come to any member’s aid if they were attacked.

Looking back at Locarno, said Zala, the “lesson [for] Europe is to take its security into its own hands.”

It’s now heeding that call. European Union member states are increasing their defence expenditures, with many even committing to allocating 5% of GDP to defence by 2035 – up from the current 2% target – at a NATO summit in June. There’s also talk of pooling a nuclear deterrent independent of the US, and boosting European countries’ defence industries to reduce their reliance on American military equipment and technology, which has included fighter jets, missiles and artillery.

A multilateral approach

Locarno’s formula for achieving peace is also instructive. In 1925, Europeans worked out their differences jointly instead of resorting to bilateral fixes.

“It was an attempt to end the balance-of-power politics as the key logic of international diplomacy, and replace it with something more attuned to cooperation,” said Jackson.

Fast forward to 2025, and the US is not only casting doubt on collective security but it’s also “deeply suspicious of multilateral institutions”, said the Glasgow professor. Trump prefers the kind of bilateral deals that lead to “powers in adversarial positions”, he added.

Germany’s Third Reich undid the multilateral system by signing individual agreements that it never intended to honour, Jackson noted. Coming after tit-for-tat trade protectionism following the 1929 Wall Street crash and economic downturns in the US and large parts of Europe, the events ultimately contributed to the outbreak of the Second World War in 1939.

“Once again, we’re seeing the same kind of turning inward and tariff barriers going up – all the things that deepened the global economic crisis in the 1930s,” said Jackson.

An indivisible European security system

Locarno itself also offers lessons of what to avoid.

One of the Pact’s major flaws was its silence on Germany’s eastern borders with Poland and Czechoslovakia, which effectively left Eastern Europe out of the regional security arrangement. German political leaders took advantage of simmering territorial disputes with these new nations. In 1938, Hitler demanded that Czechoslovakia hand over the mainly German-speaking Sudetenland, pushing the continent closer to conflict.

Nearly a century on, Russia’s full-scale invasion of Ukraine in 2022, eight years after the annexation of its neighbour’s territory in Crimea, has belatedly awakened Europe. “We in Germany ignored the warnings of our Baltic neighbours about Russia for too long,” Chancellor Friedrich Merz said in June. “We have recognised this mistake.”

“It seems that European policymakers have understood that security is not divisible and that Ukraine’s security is an element of European security,” said Jackson.

Trump’s repeated delays in US military assistance for Kyiv have seen European capitals double down on pledges to shore up Ukraine’s defences. They’re also looking ahead, with France and Britain proposing a “coalition of the willing” to support the Eastern European state after a ceasefire, though avoiding a specific troop commitment. 

Switzerland and the ‘Spirit of Locarno’

As an attempt to restore political stability and rebuild economies after the war, the Locarno Pact was a positive development for the host state, Switzerland, said Zala. The Pact promised the reintegration of Germany, one of its most important trade partners, into Europe. “To have peace in Europe and stable neighbours is the best thing for developing one’s economy,” said the historian.

As a neutral country, Switzerland did not participate in the Locarno talks, but its foreign policy today reflects the spirit of cooperation and collective security they embodied. Peace promotion is inscribed in its constitution.

Last year the country, which so far has given CHF5.16 billion ($6.4 billion) of assistance to Ukraine, hosted a conference on the prospects for peace in Eastern Europe. Though not a member of NATO, it depends on the alliance for its security and participates in joint exercises.

The concept of arbitration at the heart of the Locarno Pact remains a key element of Switzerland’s role on the world stage, with the Alpine nation often serving as a mediator to resolve conflicts between states.

But amid growing great power rivalry and global economic uncertainty, the rules-based order that Switzerland prizes is at risk, said Jackson. Although the efforts in the city of Locarno 100 years ago didn’t prevail in the decades that followed, the professor is convinced it’s the best route to peace today. 

“[Locarno] envisioned law as a source of security,” he said. “It was one of those hopeful moments in international politics – a new way to settle differences peacefully.”

SwissInfo

swissinfo is an enterprise of the Swiss Broadcasting Corporation (SBC). Its role is to inform Swiss living abroad about events in their homeland and to raise awareness of Switzerland in other countries. swissinfo achieves this through its nine-language internet news and information platform.