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Title VII of the Civil Rights Act of 1964 constitutes this country’s first serious commitment to eradicating the enormous economic disadvantages caused by hundreds of years of racial and gender-related prejudice. But there is also cause for concern. While members of once excluded groups have entered the mid-level workforce, most have not progressed to top-level positions. Perhaps not surprisingly, the elimination of barriers to mid-level employment has spotlighted the unique barriers to equal employment in top-level jobs. Title VII’s capacity to deal effectively with these barriers will be its major challenge for the next quarter-century. Its success will depend, in large part, on the vitality of the disparate impact proof model and its application to subjective employment criteria. This article, written 25 years after Title VII was passed, identifies the battleground and analyzes the United States Supreme Court’s struggle to define an impact proof model applicable to subjective criteria.

Publication Citation

66 Den. U. L. Rev. 179 (1989).