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Is disparate impact a dead theory of employment discrimination? Definitely not. The theory itself has a more stable legal status than it did when the Supreme Court embraced it in its 1971 opinion Griggs v. Duke Power Co. But is it thriving in litigation? It appears to be neither thriving nor dead. It has become a relatively less vital tool, compared with theories of intentional discrimination. Despite the heroic effort of Congress to keep the theory from destruction by the Supreme Court through its express codification in 1991, disparate impact litigation is not making a major impact in this new century.

The theme of this article is that Griggs and the disparate impact theory of litigation remain largely untapped resources of enormous potential for plaintiffs. A notable current example is contained in a case recently decided by the Supreme Court on different grounds; the plaintiff lost a case which might have succeeded with a disparate impact theory. At the same time, the theory contains pitfalls with great advantage to employers. Both sides of employment litigation need to attend more to this powerful tool and its uses and abuses.

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42 Brandeis L.J. 597 (2004).