In Ricci v. DeStefano, Justice Scalia contended in a concurring opinion that the disparate impact claim may be unconstitutional. Justice Scalia’s assertions sound an alarm because commentators herald the opinion establishing the disparate impact doctrine – Griggs v. Duke Power Co. – as the most important civil rights decision behind Brown v. Board of Education. To date, the prevailing approach to responding to Justice Scalia’s contentions rests upon the same, implicit baselines underlying his assertions. Although not contained in the disparate impact claims’ elements, those baselines provide that the disparate impact doctrine exists to either ‘smoke out’ hidden discrimination or rectify the structural inequality resulting from centuries of de jure and de facto discrimination. I argue that the origins of the disparate impact doctrine reveal another baseline proposition for the doctrine. Principally, the adoption of the business necessity prong of the doctrine reveals a concern with employment practices that contravene an established workplace governance process. This same concern exists in the present, as evidenced by the widespread efforts of employers to avow the values of fair and equitable processes in workplaces. Therefore, this article will demonstrate that a workplace governance baseline according fair and just procedures for workers exists in the modern employment context. Selection practices that distort fair procedures in the workplace contradict this normative baseline, and the disparate impact doctrine serves as a measure to remedy such procedural distortions. With this conceptualization of the reasons underlying the disparate impact doctrine, I provide an alternative basis for assessing the constitutionality of the doctrine and addressing Justice Scalia’s contentions.
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