A few years ago, law professor Gail Heriot pointed out a problem that some on the Right have been noticing for quite some time: “Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal.” She argued that at its core, disparate impact liability is an “incoherent” legal doctrine, because “all job qualifications have a disparate impact” on at least one protected class. Established in Griggs v. Duke Power Co. (1971), disparate impact liability grants “astonishing discretion” to the Equal Employment Opportunity Commission, the federal agency created by the Civil Rights Act of 1964 to enforce laws against workplace
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