In its original application, disparate impact is a “theory of liability” that prevents the use of “facially neutral employment practices,” or policies without a clear intention to discriminate, that adversely affect a protected employment class such as one based on race, gender, or religion. The recent development is particularly concerning because the disparate impact standard is not only integral in proving cases of employment discrimination, but it is also essential in combatting discrimination in areas ranging from education to housing.

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