Unintentional Discrimination Is an Oxymoron

President Trump’s Justice Department is steering America closer to the ideal of colorblind equality. It’s taking aim at a leading rationale for discriminatory diversity, equity, and inclusion policies. Such DEI efforts, which betray the goal of the Civil Rights Movement, are justified in part by a doctrine known as disparate impact. That legal jargon means that if a policy or action, regardless of its intention, harms minorities more than whites, it’s deemed unfair.This notion of disparate impact is at the root of an array of misguided policies and court rulings, but hiring and firing is among the arenas in which it has done the most damage. That’s partly because, Justice reports today, the Equal Employment Opportunity Commission promotes the premise that companies and individuals can face legal “liability based on employment decisions that disproportionately affect members of a protected group.”The EEOC purports to be following Supreme Court precedents on this head, notably a case from 1971 called Griggs v. Duke Power Company. The illogic of disparate impact as a legal standard is laid bare in Griggs. The ruling held that race-neutral job requirements — a high school diploma and an aptitude test — amounted to a form of racial discrimination against black employees because the standards did not relate to an applicant’s ability to perform the job. Where did the berobed sages get the idea that they had any business meddling in the employment decisions of a corporation, since a lower court found there was no “intention to discriminate”? The Nine ruled against race-“neutral” policies that “freeze” what the court called the “status quo of prior discriminatory employment practices.” Based in part on the Griggs precedent, Congress in 1991 enacted some disparate impact provisions into the Civil Rights Act. At the time the Civil Rights Act was drafted, though, a Justice lawyer who helped write the bill, Richard Berg, explained that “discrimination is by its nature intentional.” To “discriminate ‘unintentionally’ on grounds of race,” Berg added, “appears a contradiction in terms.” Yet that hasn’t stopped liberals from misusing the disparate impact doctrine as a cudgel to promote, in the name of civil rights, reverse discrimination.Today, in the latest signal that Mr. Trump intends to challenge the validity of this doctrine, Justice published a memorandum asserting that “Disparate-impact liability as currently interpreted by EEOC is unconstitutional.” Employment policies based on disparate impact, Justice reports, “encourage racial quotas.” These policies, too, “lack any definite endpoint,” while setting “arbitrary and undefined racial categories,” and placing “burdens on other racial groups.”Justice’s clear-eyed appraisal is a good first step, but the precedents favoring disparate impact will likely need to be revisited at the Supreme Court. As late as 2015, a liberal majority on the high court ruled in favor of allowing disparate impact claims relating to the Fair Housing Act. As in Griggs, the Nine held that public or private entities can be held liable for policies that have uneven results for minorities, even if there is no proof of intentional discrimination.That decision was five to four, though, and the current high bench would be less receptive to disparate impact. Justice Samuel Alito, in a dissent in the 2015 case, noted that in that year’s NFL draft, “the overwhelming majority” of players picked “were members of racial minorities.” Did the sports league’s policies amount to disparate impact, he mused: “Would anyone say the NFL teams made draft slots unavailable to white players ‘because of’ their race?”Justice Alito lamented how the Fair Housing Act was being “twisted to authorize disparate-impact claims.” The law, he added, “prohibits only intentional discrimination,” barring harm to individuals “because of race, color, religion, sex, familial status, or national origin.” Justice Alito’s reasoning seems to align with Mr. Trump’s push to promote colorblind fairness by challenging disparate impact’s influence in our laws and jurisprudence.

Unintentional Discrimination Is an Oxymoron

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