This study employs various statistical techniques to test the efficacy of the 1991 Civil Rights Act in moderating the highly restrictive disparate impact regime imposed by Wards Cove, and to evaluate the hypothesis that political ideology should be a more powerful predictor of case outcomes following the 1991 Act. Part I of the paper describes the evolution of disparate impact doctrine from 1971 to the present. Part II analyzes data from randomly selected disparate impact cases brought by African American plaintiffs and finds that the current disparate impact doctrine emanating from the 1991 Civil Rights Act dramatically decreases the likelihood that such plaintiffs will successfully challenge facially-neutral employment practices. Two significant observations may be gleaned from Part II: first, that the ideologies of judges on the appellate panels deciding Title VII cases exert a far more significant impact on case outcomes in the post-1991 period; and, next, that one important explanation for the decline of successful disparate impact claims is that politically conservative judges decide a greater percentage of recent cases. Based on these findings, Part III argues that Congressional action to clarify disparate impact standards is essential to preserve Title VII as a conduit through which African Americans can seek redress for discrimination.
Michael J. Songer,
Decline of Title VII Disparate Impact: The Role of the 1991 Civil Rights Act and the Ideologies of Federal Judges,
Mich. J. Race & L.
Available at: https://repository.law.umich.edu/mjrl/vol11/iss1/11