Defining "Otherwise Qualified Applicants": Applying an Antitrust Relevant-Market Analysis to Disparate Impact Cases
The University of Chicago Law Review
A plaintiff making a Title VII disparate impact claim must show that an employer's hiring practice, test, or requirement tends to exclude members of a protected class.' In other words, the plaintiff must show that the practice in question causes the employer's workforce to have a smaller percentage of minorities than the qualified applicant pool. 2 Because the result of this comparison rests on the question of who is a qualified applicant, both plaintiffs and defendants seek to shape the
... to shape the qualified applicant pool determination in their favor. The disparate impact plaintiff would like to show that the qualified applicant pool contains many persons in the protected class. Assuming the employer's workforce does not contain many such persons, such a showing allows the plaintiff to establish the prima facie case of discrimination easily under a disparate impact theory. In contrast, the defendant would like to show that the minority composition of the qualified applicant pool perfectly mirrors the minority composition of t B.