In the case of Washington, Mayor of Washington, D.C., et al. v. Davis et al., 1975, the U.S Supreme Court ruled that laws or other state actions that have a racially discriminatory effect but were not adopted to advance racial discrimination are constitutional under the Equal Protection Clause of Fourteenth Amendment. The case involved two African American men who failed a written test for employment with the District of Columbia Police Department and claimed that it was racially discriminatory as black applicants had a higher failure rate than white applicants. However, there was no evidence suggesting intentional racial bias in creating or administering this test by police department officials. The court held (7-2) that mere disproportionate impact is not enough to prove unlawful discrimination; plaintiffs must demonstrate purposeful intent to discriminate based on race.

In the dissenting opinion for Washington, Mayor of Washington, D.C., et al. v. Davis et al., Justice Brennan argued that the majority's decision failed to adequately address systemic racial discrimination in employment practices. He contended that a law or policy could be discriminatory even if it was not explicitly intended to discriminate against a particular group; rather, its impact and effects should also be considered when determining whether it is discriminatory or not. In this case, he believed that the District of Columbia police department’s use of Test 21 disproportionately affected African American applicants and thus constituted de facto racial discrimination under Title VII of the Civil Rights Act of 1964. Furthermore, he criticized the majority for requiring proof of intentional discrimination as an overly narrow interpretation which would make it difficult to challenge institutionalized racism.