In Griggs v. Duke Power Co. (1971), the Supreme Court interpreted Title VII to prohibit not just conscious and unconscious discrimination but also disparate impact, subject to an affirmative defense of business necessity. If disparate impact based on race, color, religion, sex, or national origin is not universal, it is nearly so. It is difficult to come up with a job qualification used to select one applicant over another that does not have a disparate impact on some group.

This article explores the history of disparate impact liability under Title VII, including Congress’s apparent acquiescence in 1991. It examines the extraordinary discretion this gives to the EEOC, its application to criminal background checks in particular, and arguments concerning its constitutionality.

Because nearly every job qualification may have a disparate impact, the legal landscape remains complex. The tension between business necessity and non-discrimination remains a central conflict in employment law.