Measuring Disparate Impacts and Extending Disparate Impact Doctrine to Organ Transplantation

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Abstract
To understand the distinction between racial disparity in some outcome and the concept of “disparate impact” of a practice for selecting persons for participation in a productive activity, or rewarding them, it is useful to look at the origin of this concept in employment discrimination law. The Civil Rights Act of 1964 forbids intentional discrimination or “disparate treatment.” In the Griggs case, the Supreme Court held that liability could be established without a finding of intent to discriminate. But existence of disparity of some outcome like hiring or wages could not alone be the basis for liability. The court focused on the effect of a “practice” used by the defendant more than on the mere existence of a disparity:

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