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Attacks on civil rights have become commonplace over the past few years, so it should come as no surprise that yet another civil rights protection is in danger under the current administration. Just recently, the Department of Justice released a memo calling for senior civil rights officials to re-evaluate “disparate impact”—a legal concept developed to protect people of color, women, and other groups from rules and regulations that are discriminatory in their effect, regardless of whether or not those rules and regulations were made with discriminatory intent. This protection applies to individuals in many contexts: housing, education, and employment being primary among them (although recently, this has also been discussed as critical to the enforcement of fair voting rights).
However, creating a case for “disparate impact” requires more than just data, since institutions can rebut these claims by demonstrating that a policy is the only possible method for achieving a certain goal. This is no small feat.
Conservative thinkers have long criticized “disparate impact” as a legal concept, which they believe leads to an over-emphasis on race in the law. Instead, politically-conservative individuals, including lawmakers and officials of the current administration, believe that the law should focus solely on intentional discrimination.
This is problematic for many reasons. First, it goes against forty years of Supreme Court decisions that have consistently reinforced the legitimacy of “disparate impact” claims. These rulings most likely will not be able to save it, however, as the current configuration of the Supreme Court now includes more individuals with conservative track records, who are more likely to be hostile to these kinds of civil rights protections.
Second, laws do not exist in a vacuum; the idea that “disparate impact” has become a vestigial organ of a country that no longer deals with racism is both ignorant of the current state of affairs and the historical context in which many problematic policies were enacted. Understanding the history of discrimination is crucial to creating a more just society; on the other hand, considering that history to be irrelevant or in too distant a past leads us away from that goal.
Finally, erasing “disparate impact” from federal law would allow institutions to act without impunity, giving them free reign to enforce discriminatory policies without repercussions.
Unfortunately, the Department of Justice is not the only governmental body putting “disparate impact” in the cross hairs. According to the Washington Post, the Education Department is considering making a similar recommendation, and action is already underway at the Department of Housing and Urban Development. This will have far-reaching consequences and put discriminated-against populations in an even more precarious position.
In the housing context, for example, a case is pending in New York that relies on “disparate impact” to claim that an apartment complex in Queens is discriminating against the Black and Latinx communities by having a policy against renting to anyone with a criminal record. If the Courts were to find in favor of the apartment complex, it could lead to a situation where other exclusionary policies would be enforced—and new ones created—that prevent non-white groups from fair access to housing.
In the employment context, if “disparate impact” disappeared, employers would then be vested with the power to willfully ignore the unfair effects of established policies on their workers, and they would be able to perpetuate hiring policies that unfairly exclude minorities and women. Thankfully, “disparate impact” has been written clearly into the underlying statute of relevant employment law. This will, hopefully, prevent or at least slow down the protection’s removal in that context.
That being said, the longevity of “disparate impact” in other areas—education and housing, especially—is not so certain, and the right case before the Supreme Court could spell its doom.
If you believe you may be a victim of discrimination in housing, employment, or other areas, reach out to one of our Bay Area discrimination attorneys for a consultation. With offices in San Francisco, Oakland, and San Anselmo in Marin county, it’s easy to meet for a face-to-face consultation or we can also talk on the phone. There are many areas of the law that protect against discrimination, and a consult with a Bay Area lawyer who works in discrimination can help you to know the facts of your potential case and whether you have a cause of action. You have rights. We work to defend them!