The president has deleted a key tenet of American civil-rights law
IN THE DELUGE of 145 executive orders issued by President Donald Trump (on subjects as disparate as “Restoring American Seafood Competitiveness” and “Maintaining Acceptable Water Pressure in Showerheads”) it can be difficult to discern which are truly consequential. But one of them, signed on April 23rd under the bland headline “Restoring Equality of Opportunity and Meritocracy”, aims to remake civil-rights law. Those primed to distrust Mr Trump on such matters may be surprised to learn that the president’s target is not just important but also well-chosen.
The White House order aims to defang the legal concept of “disparate impact”—the idea that policies without discriminatory intent can still violate civil rights if they produce disparate outcomes along racial and gender lines. After landmark legislation like the Civil Rights Act of 1964 was passed, disparate-impact theory accreted steadily in American jurisprudence. The idea received its greatest endorsement in the Supreme Court case Griggs v Duke Power Co., decided in 1971, which ruled that a power plant in North Carolina had violated the act by requiring job applicants without degrees to take IQ exams—which white candidates passed at nearly ten times the rates of black ones.
In their unanimous opinion, the justices wrote that this was directly traceable to race, particularly the poor education given in segregated schools, and therefore violated the Civil Rights Act which “proscribes not only over-discrimination, but also practices that are fair in form, but discriminatory in operation”.
This idea that discrimination could occur without deliberate intent was revolutionary. The federal government abolished its main civil-service exam because of discrimination lawsuits. The Equal Employment Opportunity Commission, the agency set up to police discrimination, promulgated a “four-fifths” rule, saying that procedures resulting in “a selection rate for any race, sex, or ethnic group” less than the 80% of the highest-performing group would be regarded as “adverse impact”. Because the rules required private monitoring and enforcement, they encouraged the rise of professional HR departments.
Don’t mind the gap
Disparate impact has constrained federal policy in several domains. Barack Obama pushed schools to remake their discipline policies because black pupils were suspended and expelled at greater rates than white pupils. Providers of public housing have been discouraged from asking for criminal records of potential tenants. Under Joe Biden, the Federal Communications Commission defined digital discrimination to include actions “that differentially impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, colour”.
What Mr Trump aims to do is to extirpate this kind of reasoning “in all contexts to the maximum degree possible”. Some left-leaning commentators have argued that this is segregationist in intent, but critics of disparate impact do not dispute the bans on overt and direct discrimination on the basis of race. The problem is that “virtually every practice you can name has a disparate impact on some group or other, which means that agencies can go after almost anything they want to,” says Alison Somin of the Pacific Legal Foundation, a libertarian-minded law firm.
Although Mr Trump’s order could be rescinded by an incoming Democratic president, his action—in addition to downsizing the civil-rights divisions in the Departments of Justice and Homeland Security—may well lead to the demise of the idea. Federal agencies will go years without bringing disparate-impact cases. Reviving the concept may be hard because disparate-impact lawsuits and the racial balancing they encourage are not particularly popular with voters, says Richard Hanania, a conservative commentator.
Although disparate impact is written into law on some statutes and the Supreme Court opinion in Griggs remains in effect, a new Supreme Court case might strike down the whole concept as unconstitutional. In an opinion given in 2009 (on a case about exams administered by a fire department), the late Supreme Court Justice Antonin Scalia wrote that their resolution, ducking the core constitutional questions, “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?” That day might come—and if it does, given the court’s conservative supermajority, it is not expected to go the way that progressives hope.
Disparate impact has been something of an American export. In 1985 the Canadian Supreme Court ruled in favour of a Seventh-Day Adventist who had been sacked from working at Sears because the company required all its employees to work on the Sabbath, calling it a case of “adverse effect discrimination”. European law recognises the analogous idea of “indirect discrimination”. It was codified into British law through the Equality Act of 2010—though similar ideas of indirect discrimination existed in the Sex Discrimination Act of 1975 and the Race Relations Act of 1976. In 2017 the British Supreme Court upheld indirect discrimination claims (one case involved a standardised test taken by immigration officers seeking promotion). The concept may be in its waning days in America, but it remains safely ensconced in other legal systems. ■
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