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.
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?
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:
- Do you interpret your statute, regulation, or policy to impose liability for disparate impact?
- 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.)
- 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.)
- 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.