Against what baseline? The results are only discriminatory against a baseline in which affirmative action is baked in. But this can't be the proper baseline, because if it is then any amount of affirmative action can be called into question.
Does your company practice some affirmative action? That has a disparate impact that hurts minorities, because you could be doing more affirmative action!
Edit: simplified my original reply
Since the onus is on the employer to prove that they had a legitimate reason for this disparate impact, often these cases end in settlement.
I'm sure many of these cases end in settlement — 90% of all cases do. And yeah, it's not a great idea to go around saying stuff that will inflame people. But saying something that the Chief Justice of the Supreme Court has said ("The way to stop discrimination on the basis of race is to stop discriminating on the basis of race") would not be great ammunition for a plaintiff.