<P> The disparate impact theory of liability is controversial for several reasons . First, it labels certain unintended effects as "discriminatory," although discrimination is not an intentional act . Second, the theory is in tension with disparate treatment provisions under civil rights laws as well as the U.S. Constitution's guarantee of equal protection . For example, if the hypothetical fire department discussed above used the 100 - pound requirement, that policy might disproportionately exclude female job applicants from employment . Under the 80% rule mentioned above, unsuccessful female job applicants would have a prima facie case of disparate impact "discrimination" against the department if they passed the 100 - pound test at a rate less than 80% of the rate at which men passed the test . In order to avoid a lawsuit by the female job applicants, the department might refuse to hire anyone from its applicant pool--in other words, the department may refuse to hire anyone because too many of the successful job applicants were male . Thus, the employer would have intentionally discriminated against the successful male job applicants because of their gender, and that likely amounts to illegal disparate treatment and a violation of the Constitution's right to equal protection . In the 2009 case Ricci v. DeStefano, the U.S. Supreme Court did rule that a fire department committed illegal disparate treatment by refusing to promote white firefighters, in an effort to avoid disparate impact liability in a potential lawsuit by black and Hispanic firefighters who disproportionately failed the required tests for promotion . Although the Court in that case did not reach the constitutional issue, Justice Scalia's concurring opinion suggested the fire department also violated the constitutional right to equal protection . Even before Ricci, lower federal courts have ruled that actions taken to avoid potential disparate impact liability violate the constitutional right to equal protection . One such case is Biondo v. City of Chicago, Illinois, from the Seventh Circuit . </P> <P> In 2013, the Equal Employment Opportunity Commission (EEOC) filed a suit, EEOC v. FREEMAN, against the use of typical criminal - background and credit checks during the hiring process . While admitting that there are many legitimate and race - neutral reasons for employers to screen out convicted criminals and debtors, the EEOC presented the theory that this practice is discriminatory because minorities in the U.S. are more likely to be convicted criminals with bad credit histories than caucasians . Ergo, employers should have to include criminals & debtors in their hiring . In this instance U.S. District Judge Roger Titus ruled firmly against the disparate impact theory, stating that EEOC's action had been "a theory in search of facts to support it ." "By bringing actions of this nature, the EEOC has placed many employers in the "Hobson's choice" of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers . Something more...must be utilized to justify a disparate impact claim based upon criminal history and credit checks . To require less, would be to condemn the use of common sense, and this is simply not what the laws of this country require ." </P> <P> The disparate impact theory is especially controversial under the Fair Housing Act because the Act regulates many activities relating to housing, insurance, and mortgage loans--and some scholars have argued that the theory's use under the Fair Housing Act, combined with extensions of the Community Reinvestment Act, contributed to rise of sub-prime lending and the crash of the U.S. housing market and ensuing global economic recession . </P>

Disparate impact discrimination is the term used for unintentional discrimination in hiring