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1985 Wisconsin Law Review 1 (1985)


In contrast to most recent commentary and a superficial reading of Supreme Court cases, Professor Lamber rehabilitates the concept of a distinct disparate impact theory under Title VII of the 1964 Civil Rights Act. She examines one important evidentiary question-the significance of alternative employee section criteria-to expose underlying policy questions often buried in technical questions of form. Others have argued that the Supreme Court's apparent analytical and evidentiary alignment of disparate impact and disparate treatment cases shows that Title VII bars only "intentional discrimination" and thus the purpose of alternatives evidence is quite limited. Professor Lamber presents a different view, arguing that a proper understanding of the Court's Title VII decisions and of the specific interests employers assert to justify criteria demonstrates that using alternatives to evaluate these justifications need not impose undue burdens on employers. Identifying typical fact patterns in Title VII litigation, she then illustrates three ways in which alternatives evidence can be relevant. Professor Lamber concludes that the utility of alternatives evidence depends on the kind of selection criterion challenged and the employer's reason for using it.