The bad law of "disparate impact" - discrimination

Public Interest, Wntr, 2000 by Roger Clegg

The mindset that sees the world in minority-versus-white terms is bad for race relations generally, of course, but the biggest losers are minorities. When standards must be lowered and quotas imposed because of "them," resentment and stereotypes flourish, and progress toward genuine racial equality comes to a halt.

Getting it right

It is likely that, without legislative intervention, disparate-impact theory will continue to flourish in the bureaucracies and the courts. The good news is that, with respect to everything except employment and voting, the politically difficult task of amending or repealing a civil-rights statute is unnecessary. The current statutes do not require a disparate-impact approach for education, housing, or environmental protections; accordingly, the federal bureaucracy should not either. But since it does, Congress should step in: It should establish that, unless a federal antidiscrimination law expressly provides for a disparate-impact cause of action, then the law proscribes only disparate treatment, not disparate results.

For employment, existing statutes do codify disparate-impact causes of action. In a perfect world, Congress would rewrite these statutes to exclude disparate-impact claims. At a minimum, it should add a defense for employers whose neutral selection criteria are challenged: If the employer can prove that the criteria were not motivated by a desire to discriminate, then he should win.

This is not as good as ending disparate-impact employment claims completely, but it does give employers the chance to deal with them as disparate-treatment claims. And even the politically timid might be willing to support a statute that says: an employer cannot be held liable for discrimination against someone because of, say, race, if he proves that he did not treat that person differently because of race. For voting, too, the statute must be narrowed to prohibit actual discrimination only. It must be rewritten so that no one can use it to encourage racial politics and racial gerrymandering.

Most of the worst abuses of civil-rights laws can be traced to the disparate-impact doctrine. Removing that doctrine from the law will help return the civil-rights statutes to their original purpose of barring, rather than encouraging, race-based thinking and policies.