The Business Necessity Defense to Disparate-Impact Liability under Title VII

Title VII disparate impact suits against state governments after Hibbs and Lane.

The disparate impact theory of Title VII of the Civil Rights Act of 1964 enables employees and job applicants to challenge employment practices that, although neutral on their face, have a disproportionate, adverse effect on the basis of race, sex, or national origin. It permits challenges to a wide variety of employment practices—including standardized tests, diploma requirements, height and w...

A Procedural Rationale for the Necessity Defense

The lion comes daily to the library and is beloved by the patrons and by the head librarian, Miss Merriweather. The library has many rules, but only one of them is of particular importance to the lion: no roaring allowed. The penalty for violation, as the lion well knows, is nothing less than excommunication. When Miss Merriweather falls and breaks her arm while reaching to a high shelf, the li...

Disparate Impact Realism

Torture Warrants, Necessity, and Self-Defense

This article explores a debate over the legal mechanisms by which interrogational torture could be sanctioned. Four separate proposals are considered, including: civil disobedience; torture warrants; self-defense; and necessity. Civil disobedience does not allow for legalized torture, but may allow for reduced punishments. Torture warrants contrast with self-defense and necessity in terms of of...

Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act