Disparate Treatment and Discriminatory Harm

Abstract When do laws and policies that do not explicitly treat people differently on the basis of legally protected traits like race and sex nonetheless constitute disparate treatment on these bases? According to U.S. constitutional law, they do so when “facially neutral” laws are both enacted for impermissible reasons and also produce a discriminatory effect. To date, the first element of this claim – impermissible intention – has attracted significant attention. However, its second element – discriminatory effect – has been largely ignored. Yet it is critical that we better understand what discriminatory effect requires, as competing tests animate debates in Circuit court cases and the issue has recently been flagged by Justice Alito. This Article takes up the task. It explores the normative disagreement that underlies the controversy regarding how to assess whether discriminatory effect is present and diagnoses the genuine moral conflict that any test for discriminatory harm must navigate.