# What is disparate impact? Findem publishes a public search API over its indexed pages; the guide is at https://www.findem.ai/lazyweb/agent-access. Source: https://www.findem.ai/glossary/disparate-impact Source observed: 2026-11-11T21:15:55.647Z Last checked: 2026-11-13T04:07:23.272+00:00 Indexed: 2026-11-11T21:25:03.745+00:00 --- --- title: "What is disparate impact? Title VII and Griggs | Findem" description: "Disparate impact is the Title VII theory that neutral job practices can be unlawful. Learn the statute, Griggs, and the 2026 federal enforcement posture." url: "https://www.findem.ai/glossary/disparate-impact" --- # What is disparate impact? ← Back to glossary AI and people intelligence Disparate impact is a theory of employment discrimination under Title VII of the Civil Rights Act. A practice that looks neutral, such as a test or education requirement, can be unlawful if it causes a disparate impact based on race, color, religion, sex, or national origin and the employer cannot show it is job related and consistent with business necessity. ## How disparate impact is defined Section 703(k) of Title VII, codified at [42 U.S.C. 2000e-2(k)](https://www.law.cornell.edu/uscode/text/42/2000e-2), sets out the theory. An unlawful employment practice based on disparate impact is established if a complaining party shows that an employer "uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity." It is also established if the complaining party shows an alternative employment practice and the employer refuses to adopt it. This summary reflects federal sources as of November 11, 2026. This page is a general overview, not legal advice. **How a claim is structured:** The statute divides the burden between the parties. - The complaining party must show that a particular employment practice causes the disparate impact. Each practice is analyzed separately unless the parts of the decision-making process are "not capable of separation for analysis," in which case the process can be treated as one practice. - The employer must then show that the practice is job related for the position in question and consistent with business necessity. - The complaining party can still prevail by showing an alternative employment practice that the employer refuses to adopt. - Business necessity is not a defense to a claim of intentional discrimination. **Griggs v. Duke Power Co.:** The Supreme Court recognized the theory in [Griggs v. Duke Power Co., 401 U.S. 424](https://tile.loc.gov/storage-services/service/ll/usrep/usrep401/usrep401424/usrep401424.pdf), decided March 8, 1971. Duke Power required a high school education or a passing score on a standardized general intelligence test for employment in or transfer to certain jobs. The Court held that Title VII reaches practices that exclude protected groups and are not shown to be related to job performance, even without discriminatory intent. It wrote that "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation," and that "The touchstone is business necessity." Good intent, the Court said, does not redeem procedures that operate as "built-in headwinds" for minority groups and are "unrelated to measuring job capability." **The Civil Rights Act of 1991:** Congress added section 703(k) through the Civil Rights Act of 1991, after the Supreme Court's 1989 decision in Wards Cove Packing Co. v. Atonio. [Section 3 of the 1991 act](https://www.govinfo.gov/content/pkg/USCODE-2024-title42/html/USCODE-2024-title42-chap21-subchapI-sec1981.htm) lists its purposes, including to codify "the concepts of 'business necessity' and 'job related' enunciated by the Supreme Court in Griggs" and to "provide statutory guidelines for the adjudication of disparate impact suits under title VII." **Disparate impact, disparate treatment, and adverse impact:** These terms are related but distinct. - **Disparate treatment:** The EEOC's [compliance manual section on theories of discrimination](https://www.eeoc.gov/laws/guidance/cm-604-theories-discrimination) says disparate treatment occurs "when an employer treats some individuals less favorably than other similarly situated individuals because of their race, color, religion, sex, or national origin." It requires proof of a discriminatory motive. - **Disparate impact:** The challenged practice looks neutral. The question is its effect, and no discriminatory motive needs to be shown. - **Adverse impact:** [Adverse impact](https://www.findem.ai/glossary/adverse-impact) is the statistical measure defined in the Uniform Guidelines on Employee Selection Procedures, including the four-fifths rule. Adverse impact analysis can supply the statistical evidence a disparate impact claim relies on. Disparate impact is the legal theory that decides what follows. ## Why disparate impact matters for talent teams The theory applies to particular employment practices, and Griggs involved two of the most familiar ones in hiring: an education requirement and a general test. Screening criteria, assessments, minimum qualifications, and other selection rules can all be particular employment practices. The statute asks whether each practice causes a disparate impact and whether it is job related for the position in question. **Federal enforcement posture as of November 11, 2026:** Federal enforcement has shifted, and some steps are still pending. - **April 23, 2025:** [Executive Order 14281](https://www.federalregister.gov/documents/2025/04/28/2025-07378/restoring-equality-of-opportunity-and-meritocracy) states a policy "to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible." It directs agencies to deprioritize enforcement of statutes and regulations to the extent they include disparate-impact liability, naming 42 U.S.C. 2000e-2. It also directs the Attorney General and the EEOC Chair to assess pending Title VII disparate-impact matters within 45 days. The order says it is to be implemented consistent with applicable law. - **June 9, 2026:** The Justice Department [announced](https://www.justice.gov/opa/pr/justice-department-concludes-eeoc-disparate-impact-guidelines-violate-constitution) an Office of Legal Counsel opinion to the EEOC concluding that the EEOC's disparate-impact guidelines under Title VII violate the Constitution. According to the department, the opinion says employers need only show that a practice is "reasonable, useful, or helps serve a valid business purpose," and that plaintiffs must show causation and identify an equally effective alternative with fewer unequal outcomes. - **October 28, 2026:** The EEOC [voted to rescind](https://www.eeoc.gov/newsroom/eeoc-votes-rescind-enforcement-guidance-arrest-and-conviction-records) its 2012 enforcement guidance on arrest and conviction records, effective immediately. Chair Andrea Lucas said that "Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination." - **Pending:** The EEOC's [regulatory agenda](https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202510&RIN=3046-AB43) lists a final rule to rescind the interpretive portions of its Uniform Guidelines, projected for November 2026 with an effective date in January 2027. As of November 11, 2026, no such rule had been published in the Federal Register. **What has not changed:** As of November 11, 2026, section 703(k) appears in the current published U.S. Code, and the amendment notes list no change to 42 U.S.C. 2000e-2 since 1991. Under [42 U.S.C. 2000e-5(f)](https://www.govinfo.gov/content/pkg/USCODE-2024-title42/html/USCODE-2024-title42-chap21-subchapVI-sec2000e-5.htm), a person claiming to be aggrieved can bring a civil action after the EEOC charge process. State and local rules can add their own requirements for automated tools; see [NYC Local Law 144](https://www.findem.ai/glossary/nyc-local-law-144) and the [Colorado AI Act](https://www.findem.ai/glossary/colorado-ai-act). ## How Findem approaches disparate impact Findem is the People Intelligence Platform. Its AI does not reject candidates or make hiring decisions, and people review results before they influence hiring decisions. In a post on [codifying recruiter judgment in Findem Studio](https://www.findem.ai/blog/codifying-judgment-studio-responsible-ai), Findem writes that a hiring method should meet the same standard whether it came from a human or a machine: job related, documented, validated, and tested for disparate impact. For the statistics behind that testing, see [adverse impact](https://www.findem.ai/glossary/adverse-impact) and Findem's [AI governance in HR guide](https://www.findem.ai/blog/ai-governance-in-hr-guide), which calls for role-level adverse impact analysis. Whether a practice causes a disparate impact, and whether it is job related and consistent with business necessity, is a question for each employer and its counsel. ## Further reading - [AI hiring laws in 2027: What Colorado, Connecticut, and California require](https://www.findem.ai/blog/ai-hiring-laws-2027) - [AI governance in HR: A practical guide](https://www.findem.ai/blog/ai-governance-in-hr-guide) - [Codifying judgment: Why Studio's real responsible AI story starts with humans](https://www.findem.ai/blog/codifying-judgment-studio-responsible-ai) ## Related terms - [Adverse impact](https://www.findem.ai/glossary/adverse-impact) - [Illinois HB 3773](https://www.findem.ai/glossary/illinois-hb-3773) - [NYC Local Law 144](https://www.findem.ai/glossary/nyc-local-law-144) - [Colorado AI Act](https://www.findem.ai/glossary/colorado-ai-act) - [Structured interview](https://www.findem.ai/glossary/structured-interview) ## Sources - [42 U.S.C. 2000e-2: Unlawful employment practices](https://www.law.cornell.edu/uscode/text/42/2000e-2) U.S. Code via Cornell LII; subsection (k) added by Pub. L. 102-166 (1991) - [42 U.S.C. 2000e-2, 2024 edition](https://www.govinfo.gov/content/pkg/USCODE-2024-title42/html/USCODE-2024-title42-chap21-subchapVI-sec2000e-2.htm) U.S. Government Publishing Office - [Griggs v. Duke Power Co., 401 U.S. 424](https://tile.loc.gov/storage-services/service/ll/usrep/usrep401/usrep401424/usrep401424.pdf) U.S. Reports via Library of Congress; decided March 8, 1971 - [Civil Rights Act of 1991, findings and purposes](https://www.govinfo.gov/content/pkg/USCODE-2024-title42/html/USCODE-2024-title42-chap21-subchapI-sec1981.htm) Notes to 42 U.S.C. 1981, U.S. Government Publishing Office - [42 U.S.C. 2000e-5: Enforcement provisions](https://www.govinfo.gov/content/pkg/USCODE-2024-title42/html/USCODE-2024-title42-chap21-subchapVI-sec2000e-5.htm) U.S. Government Publishing Office, 2024 edition - [CM-604 Theories of Discrimination](https://www.eeoc.gov/laws/guidance/cm-604-theories-discrimination) EEOC Compliance Manual, issued August 1, 1988 - [Executive Order 14281: Restoring Equality of Opportunity and Meritocracy](https://www.federalregister.gov/documents/2025/04/28/2025-07378/restoring-equality-of-opportunity-and-meritocracy) 90 FR 17537, signed April 23, 2025 - [Justice Department concludes EEOC disparate impact guidelines violate Constitution](https://www.justice.gov/opa/pr/justice-department-concludes-eeoc-disparate-impact-guidelines-violate-constitution) U.S. Department of Justice, June 9, 2026 - [EEOC votes to rescind enforcement guidance on arrest and conviction records](https://www.eeoc.gov/newsroom/eeoc-votes-rescind-enforcement-guidance-arrest-and-conviction-records) EEOC, October 29, 2026 - [RIN 3046-AB43: Rescission of interpretive portions of the Uniform Guidelines](https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202510&RIN=3046-AB43) Unified Agenda, EEOC; final action projected November 2026 Responsible AI Discover how Findem promotes responsible use of AI to support fair, transparent, and inclusive hiring — designed to assist, not replace, human judgment. [See how Findem approaches responsible AI](https://www.findem.ai/why-findem/responsible-ai) [Request a demo](https://www.findem.ai/request-demo) ## Frequently asked questions. **What is the difference between disparate impact and disparate treatment?** Disparate treatment is intentional: the EEOC's compliance manual describes it as treating some individuals less favorably than others who are similarly situated because of a protected trait, and it requires a discriminatory motive. Disparate impact concerns a neutral practice's effect, and no motive needs to be shown. **What is the difference between disparate impact and adverse impact?** Disparate impact is the legal theory in Title VII. Adverse impact is the statistical measure in the Uniform Guidelines on Employee Selection Procedures, including the four-fifths rule. Adverse impact analysis can supply evidence for a disparate impact claim, but the statute decides what follows. **What did Griggs v. Duke Power Co. decide?** In 1971 the Supreme Court held that Title VII reaches employment practices that exclude protected groups and are not shown to be related to job performance, even without discriminatory intent. The case involved a high school education requirement and a general intelligence test. The Court called business necessity the touchstone. **What is the business necessity defense?** Under 42 U.S.C. 2000e-2(k), once a practice is shown to cause a disparate impact, the employer must show it is job related for the position in question and consistent with business necessity. Even then, a complaining party can prevail by showing an alternative practice the employer refuses to adopt. **Does disparate impact still apply in 2026?** As of November 11, 2026, section 703(k) remains in the U.S. Code and private parties can still bring Title VII suits. Federal enforcement has changed: Executive Order 14281 directs agencies to deprioritize disparate-impact enforcement, and the EEOC plans to rescind parts of its guidelines. Check current status with counsel. --- [Read this page’s summary](https://www.findem.ai/lazyweb/api/public/v1/page-tldr?url=https%3A%2F%2Fwww.findem.ai%2Fglossary%2Fdisparate-impact&trace=t_9544b0955d7a) ## Ask a follow-up about this page Need a more specific answer? Ask the exact question you have. It returns a fresh, cited answer from Findem’s knowledge base. No account or API key required. Open this URL with your own question, URL-encoded. Include your question in q. 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