For more than half a century, disparate impact liability has been a pillar of American employment discrimination law. Since the Supreme Court of the United States (SCOTUS) issued its landmark decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), employers have understood that facially neutral employment practices—selection tests, credential requirements, physical fitness standards—may violate federal and state anti-discrimination statutes if they disproportionately exclude members of a protected class and cannot be justified by business necessity. See Griggs, 401 U.S. at 431; see also 42 U.S.C. § 2000e-2(k) (2018). California’s Fair Employment and Housing Act (FEHA), Cal. Gov. Code §§ 12900–12996 (West 2024), has embraced this framework with enthusiasm, and California courts have consistently applied disparate impact analysis in ways that track and sometimes exceed federal precedent. See, e.g., Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 354 (2000).

But the constitutional ground beneath disparate impact is shifting—and shifting fast. Over the past three decades, SCOTUS has moved with increasing conviction toward a colorblind interpretation of the Fourteenth Amendment’s Equal Protection Clause. The trajectory is unmistakable: from Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 235 (1995), which imposed strict scrutiny on all racial classifications, to Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181, 206–08 (2023), which dismantled race-conscious university admissions, to Louisiana v. Callais, 146 S. Ct. 1131, 1161–63 (2026), which struck down a redistricting plan as an impermissible racial gerrymander, the SCOTUS has systematically closed the doors through which government actors once justified the use of race. And in Ricci v. DeStefano, 557 U.S. 557 (2009), Justice Scalia issued what may prove to be the most consequential concurrence of the modern era: a warning that the “war between disparate impact and equal protection” is coming, and that the SCOTUS will eventually have to choose a side. Ricci, 557 U.S. at 595–96 (Scalia, J., concurring).

This Working Paper argues that the current SCOTUS jurisprudence has laid the doctrinal foundation for a successful constitutional challenge to FEHA’s disparate impact provisions—at least as applied to public employers. It traces the constitutional argument step by step, addresses the strongest counterarguments, and offers practical guidance for California defense litigators who may soon find themselves litigating at the frontier of equal protection law.