Griggs v. Duke Power Co. was a landmark United States decision because it recognized that barriers to equal employment opportunity need not be overt and that practices that appear neutral on their face may nonetheless have an unjustifiably exclusionary effect on protected groups. This American insight has not been lost on other Western legal systems in the context of their antidiscrimination statutes and opinions. This article explores the favorable reception that disparate impact analysis has had bother in other countries with similar legal heritages and in international law.
Despite the wide acceptance of disparate impact analysis in the international marketplace of legal ideas, the concept remains controversial among scholars in the United States. Moreover, American courts have been retreating from any application of the doctrine beyond narrow bounds. The comparative law perspective offered by this article sheds light on the American debate over the legitimacy of the disparate impact theory of discrimination and over its proper scope. This perspective reveals that if the United States is out of step with respect to disparate impact, it is not aberrant in the way its critics have suggested, because the American interpretation and application of the theory are more restrictive than those of other nations.
19 Berkeley J. Emp. & Lab. L. 108 (1998).
Shoben, Elaine W. and Hunter, Rosemary C., "Disparate Impact Discrimination: American Oddity or Internationally Accepted Concept?" (1998). Scholarly Works. Paper 580.