Scaling the Wall and Running the Mile: the Role of Physical-selection Procedures in the Disparate Impact Narrative

Since the Supreme Court’s landmark decision in Dothard v. Rawlinson in 1977, gender-based disparate impact litigation has been limited in scope, but there remains room for growth. This Comment focuses on one particularly successful subset of gender-based disparate impact cases, physical-selection procedures. An examination of these decisions shows that plaintiffs have faced an uphill battle in combating unfounded assumptions, both in establishing a prima facie case as well as in rebutting the affirmative defense. Indeed, some lower courts have relied on arguments that are inconsistent with the Supreme Court case law as it has progressed since Griggs v. Duke Power Co. At the same time, the success of physical-selection procedure cases offers hope for expansion going forward. By contextualizing an industry’s practices, referring to narratives of female applicants, and providing examples of reasonable alternatives, advocates have succeeded in positively framing their arguments in a manner that factfinders are likely to welcome. In doing so, advocates can help reclaim the ideals of Title VII and the disparate impact movement.