Recently, there has been a renewed focus on disparate impact, a theory of discrimination under Title VII of the United States Civil Rights Act of 1964. Originally recognized in the 1970s, the resurgence of disparate impact liability is likely attributable to increased efforts by states, cities, and the Equal Employment Opportunity Commission (EEOC) to remove unfair barriers to employment, particularly job rejections and terminations for criminal arrests and convictions.
Disparate impact occurs when a facially neutral employment policy or practice disproportionately impacts individuals protected under Title VII in an adverse way. Unlike other discrimination theories, discriminatory intent is not required. An employer may avoid liability if it can demonstrate that its neutral employment policy is job-related and consistent with business necessity.