This Article offers a new theory of disparate impact liability. This theory emerges from and advances a unified account of employment discrimination law as a whole. Disparate impact claims target the same distinctive injury as do disparate treatment and nonaccommodation claims: suffering workplace harm because of one’s race, sex, disability, or other protected status. This injury of “status causation” offends basic commitments to equality and individual freedom. Focusing on status causation also draws directly from statutory text emphasizing causation and individual harm, unlike more familiar approaches centered on employers’ decision-making processes or social hierarchy between groups. 

A disparate impact claim’s statistical comparison of group outcomes provides evidence that individuals have suffered status causation. Group outcomes are constructed by aggregating individual outcomes. Disparities between group outcomes can emerge only if many individual group members suffer harm because of their protected status (status causation). But not all group members suffer this injury; it is spread unevenly within the group. The statistical evidence demonstrates that some individuals suffered discrimination’s injury, but it does not identify which individuals. 

Highlighting intra-group variation in injury explains fundamental but otherwise perplexing features of disparate impact doctrine. Refusing to treat group members as interchangeable explains the structure of the prima facie case, including its rejection of any “bottom line” defense based on aggregate workforce composition. Also noted are other significant implications for remedies and for the relationship between employment discrimination law and redistributive social policy. In each case, the focus is on those individuals who have suffered status causation, not necessarily a group as a whole.

This Article offers a new theory of disparate impact liability. This theory emerges from and advances a unified account of employment discrimination law as a whole. Like disparate treatment and non-accommodation, disparate impact claims target a distinctive injury to individuals: suffering workplace harm because of one’s race, sex, disability or other protected status. That injury of “status causation” offends basic commitments to equality and individual freedom. Rather than focusing on employers’ decision-making processes or on social hierarchy between groups, this approach draws directly from statutory text emphasizing causation and individual harm.

A disparate impact claim’s statistical comparison of group outcomes provides evidence that individuals have suffered status causation. Group outcomes are constructed by aggregating individual outcomes. Disparities between group outcomes can emerge only if many individual group members suffer harm because of their protected status (status causation). But not all group members suffer this injury; it is spread unevenly within the group. The statistical evidence demonstrates that some individuals suffered discrimination’s injury, but not which individuals.

Highlighting intra-group variation explains fundamental but otherwise perplexing features of disparate impact doctrine. Refusing to treat group members as interchangeable explains the structure of the prima facie case, including its rejection of any “bottom line” defense based on aggregate workforce composition. Also noted are other significant implications for remedies and for the relationship between employment discrimination law and redistributive social policy. In each case, the focus is one those individuals who have suffered status causation, not necessarily a group as a whole.

When many people consider work and the criminal justice system, they commonly consider how difficult it is for people coming out of jail to find work. Yet, a recent UCLA Labor Center report, Get to Work or Go To Jail: Workplace Rights Under Threat, goes further by exploring the ways in which the criminal justice system can also lock workers on probation, parole, facing court-ordered debt, or child support debt into bad jobs. Because these workers face the threat of incarceration for unemployment, the report finds that they cannot afford to refuse a job, quit a job, or to challenge their employers.

Among other findings, the report concludes:

*Nearly 5 million Americans and 400,000 Californians are under probation or parole

*Many of these workers may be stripped of standard labor protections such such as minimum wage and workers compensation

*On any given day, about 9,000 nationwide are in prison or jail for violating the probation or parole requirement to hold a job.

*Every year in Los Angeles, 50,000-100,000 people must perform unpaid, court-order community service. Some debtors perform many hundreds of hours of unpaid labor, the equivalent to several months of full-time work.

*African Americans or Latinos account for 2/3 of those incarcerated for violating parole or probation conditions related to work or debt.

*The majority of fathers who were incarcerated for failing to pay child support worked during the previous year, in fact 95% of fathers reported having been employed prior to incarceration. Of these fathers, 85% of these fathers lived in or near poverty.

This report was written in collaboration with the UCLA Institute for Research on Labor and Employment and a A New Way of Life.