The Trump Administration Should Conduct a "Disparate Impact Inventory"

Scalia thought the question of disparate impact liability's constitutionality was a difficult one that sooner or later would need to be addressed. The Trump Administration needs to take it seriously.

|The Volokh Conspiracy |

In Ricci v. DeStefano (2009), a Title VII case that concerned the tension between liability for actual discrimination and liability for disparate impact, Justice Scalia began his concurrence this way:

I join in the Court's opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of [Title VII] of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?

(Emphasis added.)

Scalia wasn't the first to question the constitutionality of disparate impact liability. After Grutter v. Bollinger (2003), it was made clear that the Supreme Court would apply strict scrutiny to laws and policies that discriminate against the racial majority and not just against racial minorities. That set off alarm bells among disparate impact liability's supporters. The constitutionality issue identified by Scalia had thus been getting attention from scholars (and not just conservatives) for a while.

Disparate impact liability–as adopted in Griggs v. Duke Power Co. (1971)–presumptively forbids employers from using hiring criteria that have a disproportionate effect on racial minorities (or women) regardless of whether the employer was motivated by a desire to discriminate against applicants based on race (or sex). It even applies when the employer was unaware of the disproprotionate effect of its hiring criteria. Only "business necessity" (an undefined term) is a defense. So, for example, an employer cannot require the applicants for a particular job to have a high school diploma if such diplomas are more likely to be held by whites than by African Americans unless the employer can establish a business necessity for doing so.

(Note, as I have pointed out before, one problem is that all job qualifications have a disparate impact on some protected group. This makes everything presumptively illegal. But that's another story.)

The U.S. Commission on Civil Rights flatly stated back in the 1980s that disparate impact liability "cannot be sensibly applied to white males" given that the purpose of the liability is to uproot historical and contemporary sexism and racism. Academics have agreed. And during the debates over the Civil Rights Act of 1991 (amending Title VII to at least acknowledge the existence of disparate impact liability and limit its application), Members of Congress repeatedly stated that disparate impact liability was for women and minorities. I am not aware of any cases in which a white male has prevailed on a disparate impact theory.

All that means disparate impact liability discriminates against whites by not affording them the same protections as others. Strict scrutiny would therefore need to be applied. (Arguably, intermediate scrutiny could be applied to the sex discrimination aspects, but since they were a package deal, strict scrutiny might need to be applied to the package instead.)

Some have suggested that disparate impact could and should be fixed by applying it everybody. But even if it did extend it to white males, I don't believe that would solve the problem. Equal Protection is about individuals, not groups. If one applies disparate impact liability to, for example, the NBA to aid whites and to the City of New Haven Fire Department (which was the employer in the Ricci case) to aid African Americans, that doesn't even things out. Frank Ricci was qualified for a promotion at the Fire Department. He isn't close to qualified for the NBA (or many other jobs where whites may be statistically under-represented). He is still being discriminated against on account of his race. If half the industries in the country discriminate against African Americans and the other half discriminate against whites, that's not equity. That's just an abundance of discrimination.

The question is then: Can Griggs-style disparate impact liability survive strict scrutiny? If you want to know my thoughts, take a look at a talk I gave at the Federalist Society's 2018 Executive Branch Review: It's Time for the Executive Branch to Conduct a "Disparate Impact Inventory." (The link is to a written and footnoted version of the talk.) In it, I roughly sketch out why I think disparate impact liability under Title VII might not survive.

Here (as well as in the talk) I am more interested in a limited point: Because the Trump Administration has a duty to comply with the Constitution, it needs to get a handle on this issue. It needs to figure out where statutes, regulations, and policies have been interpreted to extend to disparate impact in a racial context and where they haven't been and why. In addition, for each statute, regulation, or policy that is being interpreted to impose liability for disparate impact, it needs to get a handle on why it is thought that it would pass strict scrutiny.

One possibility is for the Department of Justice to ask all agencies that enforce an anti-discrimination statute, regulation, or policy dealing with race to respond to the following questions:

  1. Do you interpret your statute, regulation, or policy to impose liability for disparate impact?
  1. If so, what is the legal basis for that intrepretation? (In some cases, the answer will be obvious: For example, Title VII is considered a disparate impact statute, because the Supreme Court so held in Griggs. But in other cases, it will be less obvious.)
  1. How does disparate impact liability work under that statute, regulation, or policy (e.g. what defenses apply?), and what is the agency's legal basis for thinking so? (Not all disparate impact liability is Griggs-style.)
  1. Finally, why does the agency believe disparate impact liability will survive strict scrutiny? What's the compelling interest? Why is it narrowly tailored to achieve that purpose? Each agency should take its best shot at answering these questions accurately with participation by both political and career staff. Once the Administration has that information, it can begin to decide whether the arguments in favor of disparate impact liability's constitutionality are weak or strong and what, if anything, needs to be done about it.

Especially given Justice Scalia's concurrence in Ricci, this issue deserves to be taken seriously.

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  1. I wish they would…but I see little political upside in doing so.

    1. I regret to say, you’re probably right about that. The last thing the administration is going to do, with blacks finally thinking about leaving the Democratic plantation, is to voluntarily step into this particular fight.

      Doing the right thing isn’t going to win them a lot of votes they don’t already have, but it could certainly lose them some votes they hope to get.

      1. The last thing the administration is going to do, with blacks finally thinking about leaving the Democratic plantation, is to voluntarily step into this particular fight.

        Do you think that blacks thinking about leaving the Democratic plantation are primarily motivated to receive the same or greater preferences from the Republicans? What percentage do you think are motivated to remove the stigma (that their accomplishments were unearned) that tends to attach to all members of a race when society grants racial favoritism such as affirmative action?

        1. I think it’s just too easy to paint as ugly, Given the Democrats’ media advantage.

          1. I think it’s just too easy to paint as ugly, Given the Democrats’ media advantage.

            Well, that’s true but those thinking about leaving the plantation have already shown some resistance to the media. And those of them who are motivated to remove the stigma from black accomplishment would not be lost votes.

    2. Setting up a legal challenge that will either result in a white male prevailing or disparate impact being dustbinned is a pretty good political upside.

    3. My closest companion’s ex makes Bucks75/hr on the PC. She has been jobless for eight months yet a month ago her wage with huge extra was over Bucks9000 simply chipping away at the workstation for a couple of hours. Read more on this site….. https://howtoearn.club

  2. Members of Congress repeatedly stated that disparate impact liability was for women and minorities. I am not aware of any cases in which a white male has prevailed on a disparate impact theory.

    All that means disparate impact liability discriminates against whites by not affording them the same protections as others.

    That’s…well below the proof required under current disparate impact doctrine.

    1. I think the argument is that if the entire doctrine is biased against white claimants, it is in opposition to equal protection.

      1. By that weak reasoning, we should get rid of the Civil Rights Acts, and heck, even the 13th Amendment.

        1. Not saying I agree, but I think the claim would be as follows. Statutory disparate impact is a facially neutral law in regard to race and sex. The legislatures and executive enforcement branch for Title VII have made statements that disparate impact claims cannot be utilized by white males. So you have evidence of discriminatory intent. Coupled with the lack of neutral enforcement by the EEOC, you would have additional evidence of discrimination based on race/sex.

          1. But even if you can prove such intent from legislative statements (no unitary legislature) or that such statements exist in the executive,
            even so that reasoning proves too much – it applies just as well to the longstanding laws and indeed to the Constitution itself.

            Was anyone saying the 13th didn’t apply only to blacks? Then the 14th’s equal protection should supersede it!

            1. Mind, the Constitution inherently can’t be unconstitutional.

              But, no, nobody was saying that the 13th amendment applied only to blacks. It’s not as though slavery was ever exclusively a racial thing, even if it did become predominantly racial.

              1. Sure it can – later amendments in time supercede previous.

                I’m pretty sure people thought of slavery as a black thing at the time.

                1. It didn’t start out as a black thing, but by the time of the Civil war it had become almost exclusively that.

                  And superseded amendments aren’t “unconstitutional”, they’re just obsolete.

                  1. A fair semantic point, though laws and executive actions passed under obsolete Constitutional Amendments would be unconstitutional.

                    But it seems like even you are having some trouble defending the oddly expansive version of disparate impact that eats itself.

            2. I think you’re arguing against disparate impact a little too well. Of course the 13th amendment disproportionately affected blacks. The legitimate, non-discriminatory purpose was disposing of slavery, regardless of race. Whether there was “discriminatory purpose” by some legislators does not overcome the racially neutral law and equal enforcement thereof. Same with discriminatory intent under Title VII.

              1. I’m not. My complaint about disparate impact is that it’s a lousy proxy for discrimination, in as much as it must assume that the groups in question are similarly situated, which they generally are not.

                As a low reliability screening test to tell you where you should be looking for actual evidence of discrimination, it’s not insane. The problem is, it’s not getting use that way. It’s being treated as proof of the discrimination, in and of itself.

              2. Of course the 13th amendment disproportionately affected blacks.

                No it didn’t. The correct measure would be whether it affected black slaves more than white slaves.

                Whatever one thinks of disparate impact, it needs to be measured over the relevant population, not everyone.

            3. I would suggest that disparate impact, like the Voting Rights Act, was based on decades old data; and SCOTUS made clear how they view using old data to discriminate.

    2. Just admit you’re a communist already Sarcastro. Disparate impact is a test on equality of outcomes, exactly what socialism and communism purport to advance. It’s all fun lip service by the DNC saying they only care about equality of opportunity while suing for equality of outcome.

      1. Just admit you’re a communist already Sarcastro

        Sorry if I don’t match the cartoon of me you’d really prefer to be true. Communism is dumb in principle and sucks in practice. America is great because of it’s embrace of the innovative engine of markets. None of that has anything to do with which side I come down on disparate impact policies.

        Disparate impact is a test on equality of outcomes, exactly what socialism and communism purport to advance.
        1) so anyone who is in favor of disparate impact policies is a Commie? That’s a bunch of law makers, a lot of the Supreme Court, and just about the entire Democratic Party. Not a very useful epithet if you’re going to stretch it like that.
        2) Among other non-outcome oriented arguments, there is that the playing field is skewed, and that the outcomes may not reflect actual an actual equality of opportunity. Second, there is the merit inherent in diversity via alternate points of view. Third is the social benefits. You may disagree with these, but none of them are equality of outcome.
        3) Communism is not about equality of outcome anyhow, it’s not even about equality – to each according to his needs is not a mantra of equality.

  3. As a white male, I have absolutely no problem with our current equal protection laws and their purpose to provide better protections for minorities and women.

    I can see how weak, ignorant, uneducated, bigoted white males might feel threatened though.

    1. How very classist of you.

      1. Unlike the color of someone’s skin or their sex (and gender or sexual preference), ignorance is a choice.

        Ignorant people should be harshly scorned and ostracized.

        1. Bigotry is a choice, too.

          Unlike party affiliation.

          Speaking of which, would Prof. Gail Heriot submit to a DNA test could demonstrates whether she is an “independent” (rather than a Republican), as she claimed when attempting to establish eligibility for a federal position?

          If Prof. Heriot has the character needed to permit determination of the accuracy of her silly claim, and a DNA test demonstrates she is an “independent” rather than a right-wing, movement conservative Republican, I would donate $10,000 to a charity.

          If she does not agree to submit to DNA testing, I submit that she is a partisan liar — and therefore a natural fit as the token female Conspirator.

      2. Being “uneducated” is not merely a matter of not going to college or something.

        Quite a few people w/o such education are still educated.

        1. And many people who have education are still ignorant. Most victim studies majors as an example.

          1. Most ______ “studies” majors are perfect examples of educated yet still ignorant.

    2. Glad you were chosen to speak for all white males.

    3. As the father of an Asian-American, a racial group routinely subject to extreme levels of discrimination in academia, and just as a guy who is offended by racial discrimination and constitutional violations, I have huge problems with our current “equal protection” laws, which, (In large part due to disparate impact theory!) are nothing of the sort.

      1. oh, then you must be very upset about the fact that ivy leagues unfairly favor whites over asians who consistently outperform them, whites being the absolute largest racial group displacing the most people. or how asians dominate stem at university, and in entry level representation, but lower quality whites get 3x more many executive positions than they do. youre a great dad, looking out for your asian kid like that.

        1. Yes, I’d rather that the Ivy Leagues just go with straight meritocracy. My family does quite well under those conditions, we’ve never needed a thumb on the scale, nor gotten one, for that matter.

          1. Your family lives in America’s can’t-keep-up backwaters. Even if the Bellmores are Kings Of The Goovers, it’s a paltry position.

    4. Seems mighty hypotehtical. When you are denied a job because of these policies, then report back on whether you have a problem with it.

      1. Job hiring discrimination is typically invisible to the applicant. You have no idea why person x over person y gets an interview, and why person A gets hired over person B. You are outside the organization and not included in their conversations and decision-making process. It’s only when hiring decisions are looked at in the aggregate does a pattern (sometimes) emerge. Moreover, sometime the pattern is just that a race or ethnicity is just not as qualified for the job as another race or ethnicity, on average. It’s actually very hard to prove discrimination of any sort, outside of individual cases, where on-the-job things are said or done.

      2. Would you want to work for someone who wouldn’t hire you because you’re white?

        1. I want to work for someone who pays me a salary so that I can eat and pay my rent. This is the same reason that a lot of people work. Working for someone who otherwise wouldn’t hire you beats not working.

          1. Denied a job is not the same thing as denied any job.

        2. No, and I would never apply to someplace that said NINA, but unless they have a sign up, how am I to know that the employer really, really wanted to hire that black guy for the diversity points, but when the black guy chose a better offer for a higher salary, that they had to settle for me instead?

          1. Your hypothetical is at war with Bored Lawyer’s.

    5. Generally speaking, it would be their bosses who did the hiring who discriminated, not them per se.

    6. So was Ricci one of those weak, ignorant, uneducated bigots you’re talking about? Or was he a normal guy with a legitimate grievance?

    7. You have no problem with it until your kid gets screwed for college.

    8. “better protections” =/= rigging the game to achieve a politically desired result.
      To paraphrase Irving Kristol: “A conservative is a liberal whose (4.0/1600/Eagle Scout/All-Conference tennis player) child got rejected by Dartmouth.”

      1. The argument that liberals are surely more petty than they think is not a very convincing one. Unless you just want to gin up contempt for liberals no matter what they say.

        Assuming affirmative action’s only effect and purpose of obtaining equality of result is begging the question a bit.

        1. The argument that liberals are surely more petty than they think is not a very convincing one

          Really? My assumption would be that everyone aside from the truly self-loathing is more petty than they think

    9. Except disparate impact theory doesn’t protect anybody. It ensures equality of the outcome of policy. It serves no protection but is utilized as a means to redistribute post outcome.

  4. Disparate impact is [and always has been] an abomination.

    Liability without actual proof. It offends every fiber of American jurisprudence.

    1. Indeed. Just as crazy as the TOTAL opposite, Ron Paul.

    2. Liability without actual proof. It offends every fiber of American jurisprudence.

      It also constitutes a foundation of Republican-conservative voter suppression efforts.

      The government claims you didn’t return a postcard the government claims it mailed to you? No vote for you!

      1. The government claims you didn’t return a postcard after not voting in the last several elections?

      2. At least not if you chose to not vote for several elections, then made no effort to make sure you were registered (and, if need be, re-register).

        1. Both the GOP and the Democratic party agree that there’s a large part of the Democratic voting base that’s so under motivated about voting, that requiring even the slightest effort of them to vote will cause them to not bother. This leads ‘voting rights’ activists, virtually all of whom are partisan Democrats, (Because if you’re not a partisan Democrat, the other ‘voting rights’ activists won’t admit you’re one of them.) to characterize anything that makes voting even the tiniest bit inconvenient as “vote suppression”.

          Unless it’s in a state Democrats already control. So, North Carolina commits vote suppression by having slightly under a month of early voting. New York doesn’t commit it by having no early voting options at all. Funny how that works.

      3. Well look at this. Arthur is asking to overturn the VRA which requires states to maintain their voter roles. Who knew Arthur was such a bigot by his own definition.

        1. Well look at this. Arthur is asking to overturn the VRA which requires states to maintain their voter roles.

          Get an education, goober. Start with standard English.

          1. Perhaps RAK could learn standard English instead of trying to redefine terms.

      4. The government claims you didn’t return a postcard the government claims it mailed to you? No vote for you!

        It’s not quite that simple. The Ohio law requires that before the voter is removed from the rolls he has to:

        1. Fail to vote for two years
        2. Fail to then return a pre-addressed, postage prepaid return card
        3. Fail to then vote in any election for four more years

        So we have a voter who has failed to vote for six consecutive years and has also failed to return the prepaid card. How is it unreasonable to assume that this person has moved away?

  5. Generally speaking, it would be their bosses who did the hiring who discriminated, not them per se.

  6. “We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth.”

    1. A key point to remember is that said events are scarcely now too recent to be called history.

      Even O’Connor had to admit that at SOME point, historical discrimination would be too far distant in the past to be used to justify present discrimination. She just preferred that the can be kicked beyond her tenure.

      At some point you have to ask why the people obsessing about slavery don’t suggest going after North Africa, where it’s actually going on today. It’s almost as though it was just an excuse to demand racial spoils.

      1. They are happening as we speak.

        There are forms of slavery in this country, including is some sorts of sweatshops etc.

        But, there are still enough racism and direct effects of racism — these things, when segregation was still a thing even when you yourself was a boy, don’t suddenly disappear in a few years or even decades.

        The proper path to equality can be debated. But, when even admitting there is a problem is hard (except to point to attempts at a solution as being the true problem — shades of critics of the Civil Rights Act: Part I), it is an uphill battle.

        1. There are forms of slavery in this country, including is some sorts of sweatshops etc.

          Please, do go on about these legalized slaveries in the current US

          1. Particularly the racially structured ones, of course, since others wouldn’t be relevant to this conversation

          2. No, he’s right. There are occasional instances of slavery uncovered in the US. It isn’t anywhere legal in the US, but neither is rape or murder, and they still happen. He didn’t say “legalized” slavery.

            1. I’m not sure what things universally understood to be crimes have to do with the subject of what is on the edges of legality, nor what any of this has to do with race.

              1. The thread concerned wider history than the specific debate over disparate impact & includes reference to slavery as a whole. Brett also spoke about what is now occurring vs. what is history. So, it all seems fairly germane, especially given the normal standards here.

                Sweatshop slavery repeatedly has something to do with race — a certain group of people of certain races — from the Chinese who worked on railroads etc. (referenced in the court cases NToJ references etc.) to modern day analogues – repeatedly are associated with them.

                1. Really, you believe that people are choosing sweatshop “slaves” because of their race, not because of their supply chain?

        2. ” direct effects of racism”

          Oddly this is so sparse that we had to invent a new metric of implied racism (unconscious bias) and measure it through disparate impacts (which don’t measure direct racism).

          1. Unconscious bias is a measurable thing, though.

            But moreover, the past ain’t the past.
            Redlining was still going on as late as the 1980s de jure, and well after that de facto. Frwer housing opportunities means less opportunity to rise out of poverty, which leads to lower educational opportunities for the next generation, and thus metrics that correlate with class (most of them) not reflecting actual merit.

            1. Unconscious bias has never been accurately measurable. The Implicit Bias Test that so famously launched the whole series of unfalsifiable ‘theories’ was so inaccurate that the same person taking the test repeatedly would score all over the place, from maximally bias to completely unbiased, with no pattern to it. The measures used to determine bias were actually smaller than the physical variance in the act of making the answers themselves!
              The authors of the theory later admitted that the test cannot accurately predict the attitudes of the tested subjects, even with repeated testing.

              Anyone that supports unconscious bias, implicit bias, microaggressions, or any idea that relies on those theories is utterly ignorant of the actual science behind them, and is pushing ideology -in-science-clothing worse than any climate-denier.

              1. My understanding is that the research has gotten substantially more buttoned up since then.
                https://www.bbc.co.uk/programmes/b09pl66d

      2. “Even O’Connor had to admit that at SOME point, historical discrimination would be too far distant in the past to be used to justify present discrimination. She just preferred that the can be kicked beyond her tenure.”

        I was quoting Slaughterhouse for the proposition that discrimination against white butchers is permissible under an originalist reading of the 14A. I.e. that equal protection could tolerate unequal protection for whites.

        “At some point you have to ask why the people obsessing about slavery don’t suggest going after North Africa…”

        You mean, like, invading?

        “It’s almost as though it was just an excuse to demand racial spoils.”

        Your imagined motivation of others is as irrelevant to the constitutional issue as are their actual motivations.

        1. It was discrimination in favor of people who’d not much earlier been actual slaves.

          And the Slaughterhouse cases where the Court, notoriously, gutted the Reconstruction amendments. Would it be shocking the Slaughterhouse Court would be ok with racial discrimination?

          1. “Would it be shocking the Slaughterhouse Court would be ok with racial discrimination?”

            No. It would be shocking if Brett Bellmore had a better understanding of the original intent of the 14A than the Slaughterhouse court.

            1. The original intent of the privileges and immunities clause was not to grant new rights to everyone but to constitutionalize Section 1 of the Civil Rights Act of 1866:

              That there shall be no discrimination in civil rights or immunities . . . on account of race . . . but the inhabitants of every race . . . shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment . . . and no other.

  7. Yeah but will you also cite Scalia’s Heller ruling, also originalist, but inconveniently confirmed Miller (1939) that 2A protects only such weapons in common use at ratification, brought from home for Militia service? The modern version, pistols and what many call hunting rifles.

    (Originalism is often a lame excuse, on only issues whuch are con-veeeeeeen-yent to goobers. See Ron Paul.)

    The NRA’s precious snowflakes — so eager to be brainwashed — angrily screech that Scalia said “at the time” meaning today. Then they shut up in humiliation, when told the NRA was POWERLESS to fight the 1994 ASSAULT WEAPONS BAN (what it was called), which could only be repealed or expire. It expired … after long 10 years … an entire decade of NRA helplessness.

    Right – Left = Zero
    Both authoritarian. Both eagerly brainwashed.

    1. No, Miller did not hold that the 2nd Amendment only protects weapons in common use as ratification. Neither did Heller.

    2. Why does Hihn repeat the same easily debunked lies over and over?

      1. Because he is the libertarian Kirkland.

      2. Kopel invented a term for this: “gun-aversive dyslexia”: “A fear and loathing of guns so profound that health advocate sages encountering adverse facts may be honestly unable to comprehend them.”

        It’s a depressingly common syndrome. Sufferers are perfectly capable of reading the Miller case, for example, and thinking it said that military style arms aren’t protected. When the Court actually held that only firearms suitable for military purposes were protected, and remanded the case for a determination as to whether sawn off shotguns had military utility.

        It might be simplest to just admit they’re nuts.

        1. I’ve always adored the term hoplophobe. 🙂

      3. He suffers from a specific form of CRIS (Cranial-Rectal Inversion Syndrome) known as Hihnsanity!

    3. “Yeah but will you also cite Scalia’s Heller ruling, also originalist, but inconveniently confirmed Miller (1939) that 2A protects only such weapons in common use at ratification, brought from home for Militia service?”

      Neither Heller nor Miller say what you are claiming that they say, and in fact the majority in Heller explicitly rejected the argument that 2A protects only such weapons as were in common use at ratification.

      1. Not only rejected, but described it as “bordering on the frivolous”

  8. I don’t see how this could be a major issue.

    It’s pretty well established that the Equal Protection Clause does not have a disparate impact component. So I don’t see how it would apply if a disparate impact remedy itself had a disparate impact on the majority. I therefore don’t see how some sort of sweeping facial challenge would succeed.

    And as to applied challenges, existing case law already makes clear that a disparate-impact remedy that is too ham-fisted could run afoul of the majority’s rights.

    So I don’t see how there is anything new here. There is some play in the joints if a disparate impact remedy itself causes an unintended disparate impact, so long as it isn’t too sweeping.

    And even if that weren’t the case, I don’t see why everyone would need to scramble over dicta in a single-Justice concurrence.

    1. “There is some play in the joints if a disparate impact remedy itself causes an unintended disparate impact, so long as it isn’t too sweeping.”

      What if a disparate impact remedy itself causes an unintended school shooting and/or false criminal allegations? As occurred in Parkland ISD and numerous college kangaroo courts.

  9. Those who actually studied the Ricci case learned an interesting fact about it, which was that five minority candidates for promotion scored high enough to be promoted, and would in fact have been promoted had the city not refused to respect the outcome of the testing process. So in Ricci, the City of New Haven actually screwed 5 minorities out of a promotion, allegedly because it could not promote 7 minorities based on the result. A perverse result of mechanical application of the EEOC’s “four-fifths” quota rule.

    1. Those who studied Ricci learned something else egregious, the exam was based on a book, which was out of print and not available for purchase at any price. Conveniently though, some people could get copies from test takers in the past. Such a lovely “good ol’ boys” setup!

      The trial court should have thrown out the test right there as totally arbitrary and capricious to have a test based on material that is not equally available to all test takers. Getting to the harder disparate impact story could have happened after they fixed that glaring error.

  10. This is an example of bad faith of the left, as they PROMISED during the hearings on the CRA that disparate impact and quotas would not be the result. Then as soon as the law was passed, the Johnson Administration implemented both.

  11. The Administration does have an obligation to comply with the Constitution, but “the Constitution” is not the views of some right wing extremists and a dead Supreme Court justice.

    Unless and until the Supreme Court holds disparate impact unconstitutional, we shouldn’t be dismantling it.

    1. So until the continued use of the AUMF is declared unconstitutional by the SC nobody should do anything about it? Or is disparate impact different because you agree with it?

    2. Disparate impact theory is not constitutional in nature, though; it’s only statutory. The administration does have an obligation to comply with constitutional statutes, of course, but it is not required to zealously advocate for these laws and their expansion.

    3. Is that what you really want Dilan? Like what occurred with the Voting Rights Act?
      SCOTUS warned Congress about that issue, in particular using old data, and Congress ignored the warning.

  12. I said this above:

    “There are forms of slavery in this country, including is some sorts of sweatshops etc.”

    It’s so mundane of a statement one of my usual opponents accepted it as such.

    But, I’m fine with a more expansive statement, including various cases where employment choices are so coercive or where legal payment is so denied [various cases of wage theft have been cited] to be a problem at least in respect to the spirit of the amendment.

    Others have thought big here, arguing for example that reproductive liberty amounts to a 13A principle. See, e.g., an article by Prof. Andrew Koppelman. I also think that a valid argument. Freedom over reproductive liberty, travel and other matters is basic to freedom, the alternative “badges of slavery.”

    As to the whole disparate impact argument, widely speaking, that is a product of experience. It is often a red flag and used to widely legislatively enforce equal protection in practice. It is not compelled but a valid legislative enforcement per Section V of the 14th Amendment (and as applicable, perhaps other amendments).

  13. Disparate impact theory is based upon demonstrably false assumptions – that the populations being compared are exactly equal in all relevant characteristics and respects. But logic, experience, and empirical evidence all conclusively show that assumption to be false. The physical conditioning requirements of the U.S. Marines, and of nearly every police and fire department across the nation, have a disparate impact on women. Women, ON AVERAGE, are smaller, with lower muscle mass and less upper body strength than men. That is not to say that some women can’t meet these physical requirement, or that they shouldn’t be allowed to try. Of course they should, and some women will succeed. Because in every population there is a distribution curve of characteristics, whether height, weight, upper body strength, IQ, spatial reasoning ability, etc., AND there will always be outliers along that distribution curve. The exact same analysis holds true with distribution curves for IQ broken down by race or ethnicity. On AVERAGE, Ashkenazi Jews have the highest scores for verbal acuity (only average scores for spatial reasoning), so they are overrepresented in fields like law and writing. Eastern Asians, Chinese, Japanese, Koreans, have the highest AVERAGE scores on spatial reasoning and quantitative analysis, and are overrepresented in fields like engineering and computer science. Since disparate impact is based upon a demonstrable falsehood, it needs to go.

    1. “…that the populations being compared are exactly equal in all relevant characteristics and respects.”

      Disparate impact is problematic for a lot of reasons, but you’re just wrong. Disparate impact jurisprudence is not based on the idea that all people are equal. It’s a fairly narrow doctrine that says you can’t use tests or criteria for employment that affect minority populations unless you can also demonstrate that the test or criteria is reasonably related to the work involved. I don’t always agree with how it is applied, but it’s pretty innocent in theory. It would be like the marines only allowing people in who had memorized Hank Williams songs. It’s intended to weed out discrimination hidden behind fake proficiency exams. Think literacy tests during Jim Crow.

      “The physical conditioning requirements of the U.S. Marines, and of nearly every police and fire department across the nation, have a disparate impact on women.”

      And if those physical requirements are reasonably related to the jobs that marines, police, and fire departments do, they don’t run afoul of disparate impact or the CRA.

      Since basically everything you say demonstrates profound misunderstanding of the subject matter, maybe you should be the one who goes?

      1. Described that way, disparate impact theory sounds pretty innocent.

        And affirmative action sounds innocent, too, if you describe it in the manner it was originally conceived, rather than the way it got implemented, as a system of racial quotas.

        That’s the key distinction here, between the innocent original concept, and the not nearly so innocent implementation. The response when it was discovered that just making reasonable efforts wasn’t advancing things fast enough.

        1. The sensible thing then would be to get it implemented as NToJ described, since we all agree on that.

      2. I understand your point however how do you explain disparate impact being used in K-12 schools to ignore criminal actions/behavior? This is one of the issues in the MSD shooting; the shooter had a long history of violence however Parkland ISD and Broward County did nothing because of disparate impact.

        1. “I understand your point however how do you explain disparate impact being…”

          When I said: “I don’t always agree with how it is applied, but it’s pretty innocent in theory.” Like any judicial test it can be misused, and if that misuse is sufficiently rampant, I’m all in favor of abandoning a good-in-theory-bad-in-practice rule. I don’t exactly know what you mean by “being used in K-13 schools to ignore criminal actions/behavior”? What is is you think Parkland or Broward County failed to do because of fears they would violate disparate impact?

      3. “Disparate impact jurisprudence is not based on the idea that all people are equal. It’s a fairly narrow doctrine that says you can’t use tests or criteria for employment that affect minority populations unless you can also demonstrate that the test or criteria is reasonably related to the work involved.”

        And if that were the ONLY way that disparate impact theory were applied, you might be right. But it is not, and you are not. For another application of disparate impact theory, you need look no further that Obama’s reliance upon disparate impact to require that public schools’ disciplinary outcomes could not disproportionately affect minority students, conveniently discussed in Gail Herriot’s post on this blog, “The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline.”

        If in fact disparate impact theory were as limited and benign as your claim, I would have no problem with it. But it is NOT a “narrow doctrine”, at least not as currently applied, and even in the limited context of which you speak, employment law, the application of the “reasonably related to the work involved” test which you so blithely recite has been applied in such a manner that it is very expensive and difficult for employers to demonstrate compliance. But you are completely indifferent to those costs, which are ultimately borne by all employers, and passed through to all employees and all consumers.

    2. Also consider how weird you sound seeking any opportunity to talk about how smart Ashkenazi Jews are. It’s like you read one chapter of The Bell Curve and then spit out a line before anyone asked you about it. You’re like that Harvard dork in Good Will Hunting. REGAHGITATIN’ GAWDON WOOD

      1. This is a classic ad hominem logical fallacy. Address his argument instead.

        1. Jeez, why didn’t you lecture him on his argument from false premise? And my substantive address to his “argument” is above. I posted it first.

          1. Jeez, why didn’t you lecture him on his argument from false premise? And my substantive address to his “argument” is above. I posted it first.

            OK, but you demean your argument when you add logical fallacies.

            Disparate impact jurisprudence is not based on the idea that all people are equal. It’s a fairly narrow doctrine that says you can’t use tests or criteria for employment that affect minority populations unless you can also demonstrate that the test or criteria is reasonably related to the work involved.

            Disparate impact is clearly based on the idea that all other things are equal so the disparate outcome must have come not as a result of merit or ability but as a result of racial preference. The test you describe comes from the presumption that tests resulting in disparate impact that are not required by any business necessity are there in order to produce the disparate impact.

            1. “OK, but you demean your argument when you add logical fallacies.”

              You mean like when you babble at me about fallacies before confronting my argument head on? As an aside, that’s a fallacy too. You can’t “demean” an argument.

              “The test you describe comes from the presumption that tests resulting in disparate impact that are not required by any business necessity are there in order to produce the disparate impact.”

              I’m more of a business justification rather than necessity guy, but Congress disagreed. But let me be clear: I do in fact presume that qualification requirements that are wholly unrelated to job performance cannot be justified on the basis of job performance. I’m not prepared to say that every private employer who has such requirements is a racist, but at the very least I’d prefer government employers to base their qualification requirements exclusively on expected job performance, if only for efficiency’s sake. Don’t you?

              1. You can’t “demean” an argument.

                To demean is to lower in dignity, and the inclusion of a logical fallacy does have that effect on an argument. I’m not saying that the inclusion of a logical fallacy renders an otherwise valid argument invalid. It’s more like serving for dinner a plate filled with food but also containing a dab of excrement.

                I’m more of a business justification rather than necessity guy, but Congress disagreed.

                You define disparate impact as follows: requirements that have a disparate impact on minorities but that have no business purpose are presumed to be there for purposes of racial discrimination. However, this is just one type of disparate impact ? the identifiable screening device. Disparate impact is also in play when there is no identifiable screening device but merely a disparate outcome. This is what DjDiverDan was addressing. His point was that the reasoning is only valid if in fact there are no real differences in the capabilities of the people. He is correct, right?

                In any event disparate impact is based on the idea that there are no relevant differences between the capabilities of the people in question. Even in the case of the invalid screening device the assumption is that for all practical purposes the people do not differ in ways relevant to the business. If people were removable as a result of invalid criteria but there were also valid criteria for their removal there would be no problem in removing them.

                1. “Disparate impact is also in play when there is no identifiable screening device but merely a disparate outcome. This is what DjDiverDan was addressing. His point was that the reasoning is only valid if in fact there are no real differences in the capabilities of the people. He is correct, right?”

                  What do you mean by “no identifiable screening device”? If there’s a “disparate outcome” there’s a screening device. If the disparate outcome is because whites score worse than blacks (or vice versa) and the screening device is related to the job, it isn’t the case that “there are no real differences in the capabilities of the people”. It is baked into the theory that there will be some screening devices that some groups do worse at than others.

                  “In any event disparate impact is based on the idea that there are no relevant differences between the capabilities of the people in question.”

                  No it isn’t. It is based on the theory that there are sometimes irrelevant differences between the capabilities of the people in question.

                  1. What do you mean by “no identifiable screening device”? If there’s a “disparate outcome” there’s a screening device.

                    Yes, but it may not be identifiable. What if fewer minorities apply because the job requires skills that fewer minorities have become proficient in? What is the screening device in that case? I guess that by “screening device” I meant something other than minimal job qualifications.

                    “In any event disparate impact is based on the idea that there are no relevant differences between the capabilities of the people in question.”

                    No it isn’t. It is based on the theory that there are sometimes irrelevant differences between the capabilities of the people in question.

                    That’s just two ways of saying the same thing. “No relevant differences” means the same thing as “only irrelevant differences.” If a court finds an impermissible disparate impact then it is saying that there were no differences that were relevant from a business perspective between those who were accepted and those who were refused employment.

              2. at the very least I’d prefer government employers to base their qualification requirements exclusively on expected job performance, if only for efficiency’s sake. Don’t you?

                Your point may be valid as a policy matter, but the implementation of it is problematic. There are few jobs outside of baseball and sales where performance is easily quantifiable — and even for those jobs, tying a specific requirement to that performance is an overwhelming hurdle. Requiring a business (or government agency) to prove that their requirements are directly related to job performance becomes a de facto quota system, as Ricci itself illustrated.

                They never should’ve created disparate impact; instead, they should have just used the McDonnell-Douglas burden shifting framework, in which the (putative) employee has to prove that the requirement is a pretext. (Yes, I know that’s an anachronism, since Griggs predated M-D.)

    3. if theyre demonstrably false, then you would likely have legitimate business justifications for your selection criteria. not a very high bar if youre not being shady.

      1. Why do you think “business necessity” is a low bar? (Note by the way that the Griggs test is “necessity,” not “justification.”) The burden-shifting alone is generally regarded as too onerous to even try to justify.

  14. “an employer cannot require the applicants for a particular job to have a high school diploma ”

    True fact: When converting the employment matching process of the Commonwealth of Virginia for computer matching, the check box “high school diploma required” was replaced with “able to read and write”. This was not due to disparate impact (which had not been invented in 1970), bit due to the fact a high school diploma was a meaningless indicator of being able to read and write.

  15. Isn’t Howe v. City of Akron, No. 14-3352 (6th Cir. Sept. 17, 2015), an example of a case where white males won on a disparate impact theory? (Granted, I imagine that some might suspect that it was written as a taken-to-logical extreme illustration of the doctrine written by one of its opponents as satire.)

    1. They technically won on disparate impact, but a reading of the case you cited (Which is Howe III) says that they really won on a combination of waiver and res judicata. Looking at Howe I and Howe II you see that the disparate impact ruling was supported by overwhelming evidence of both age and race discrimination that went up to everything besides a “smoking gun” type memo.

  16. So, for example, an employer cannot require the applicants for a particular job to have a high school diploma if such diplomas are more likely to be held by whites than by African Americans unless the employer can establish a business necessity for doing so.

    This was precisely the issue in Griggs, and there was ample evidence that not having a high school diploma did not affect one’s ability to the job in questioner even to be promoted from it, and that the purpose of the requirement, instituted in response to the 1964 CRA, was discriminatory. .

    Talking about disparate impact without some definition of the underlying statistical standard, is nonsense. IN Griggs there was a reference to markedly disproportionate outcomes. Ms. Heriot conveniently omits that word from her discussion. At some point the disparate impact, properly measured, is evidence of discriminatory practice.

    I’m willing to bet that Brett understands the argument, even if others here don’t.

    1. This was precisely the issue in Griggs, and there was ample evidence that not having a high school diploma did not affect one’s ability to the job in questioner even to be promoted from it, and that the purpose of the requirement, instituted in response to the 1964 CRA, was discriminatory. .

      Actually, the factual finding of the court had been that the purpose was not discriminatory.

      And if the purpose had been discriminatory, then they wouldn’t have needed to construct the disparate impact analysis in the first place.

  17. “questioner” = “question or”

  18. I’m glad that the VC is finally taking the issue of civil rights reform seriously, and I hope Trump does too.

  19. “…this issue deserves to be taken seriously.”

    No, It doesn’t.

    1. Yes, it does. Progressives didn’t take the SCOTUS warning about using old data for the VRA and look at what happened. If y’all don’t take the issue of disparate impact, based on old data, seriously; then it too will be gutted by SCOTUS.

      1. IMO ignoring, or not taking the issue seriously, will result in serious consequences, whether good or bad, for the nation as a whole. It is unfortunate that some people are more concerned with the power they believe they gain by misusing disparate impact. We see the same with immigration, abortion, and a whole host of issues whereby law(s) are made using the most current data at the time but the data is never updated to ensure the law(s) are adjusted to stay current. SCOTUS warned about using old data for the VRA yet some people were more concerned with keeping their power instead of updating.

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