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In proving a case of adverse disparate impact discrimination under Title VI of the 1964 Civil Rights Act, a plaintiff in its prima facie case must show a significant disparity between an affected population and an appropriate comparison population. Both government agencies and commentators have neglected to address the crucial issue of how to elect and define a comparison population. Title VI cases often look to Title VII cases for guidance. Title VII cases require that a comparison population should be similarly situated to the affected population. In 2000, the Environmental Protection Agency ("the EPA" or "the Agency") issued draft Title VI guidance addressing this issue, but the Agency failed to address how to select a similarly situated comparison population. Business commentators have proposed an overly restrictive test requiring that both the affected area and comparison population contain very similar land uses. For example, business commentators suggest it would be inappropriate in many cases to compare a poor, urban area with an affluent suburban area.

This Article proposes that a comparison population is similarly situated with an affected population if the comparison area meets the minimum relevant requirements for the proposed facility. This test is consistent with Title VII cases requiring that comparisons be made between qualified workers in the same relevant job market. The proposed test would allow comparisons between poor, heavily minority areas and affluent suburban areas as long as the facility could be sited in either area. The Article addresses how the EPA can use existing information to select comparison areas and the special problems presented by local zoning restrictions.