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Democrats And ?Disparate Impact?: Discrimination Without Discriminators

There they go again, in a nice preview of what they?ll do if they take over the Senate and the White House in 2008. ?They,? of course, are the Democrats. More specifically, ?they? are Sen. Ted Kennedy and friends, who recently introduced S. 2554, the ?Civil Rights Act of 2008.?

The CRAo08 would go a long way toward reviving and reinvigorating the largely dormant, even dying, theory of ?disparate impact? discrimination, a theory that allows plaintiffs to argue successfully that a ban on racial or ethnic discrimination can be violated by a defendant who does not engage in racial or ethnic discrimination.

Weird? You bet. The estimable Roger Clegg explains how this works (his argument also discussed here):

These claims do not allege, and need not prove, that individuals were treated differently because of their race. Instead, it is enough to show that a neutral practice has a disproportionate effect -- that is, a disparate impact -- on some racial group.

For instance, if a landlord refuses to rent to people who are unemployed, and it turns out that this excludes a higher percentage of whites than Asians, then a white would-be renter could sue. It would not matter that the reason for the landlord?s policy was race-neutral and had nothing to do with hostility to whites. The landlord would be liable, unless he could show some ?necessity? for the policy....

There are lots of other examples of race-neutral policies that can be challenged because of the disparate impact they have in the housing market. Suppose a lender refuses to make home loans to felons -- or simply to people with poor credit ratings. Those practices also will have a disparate impact. The same is likely true if a city makes a particular zoning decision (the underlying controversy in Cuyahoga Falls) or has per-house or per-apartment occupancy limits (an increasing area of controversy in many communities).

Federal regulations under the Fair Housing Act also cover insurers. This raises additional disparate-impact issues. Suppose an insurance company refuses to write policies for homes more than 40 years old, or if their market value is less than $40,000. Such rules of thumb are in fact common, and they tend to have a disproportionate impact on certain (often minority) neighborhoods.

The New York Times, of course, urges support for Kennedy?s new civil rights bill. I?m sure it, and those of like mind, would like to see a full-scale revival of disparate impact litigation. That theory, Clegg notes,

is a powerful engine in favor of quotas and racial preferences and against rational and economically sound selection criteria (so it's no surprise that the civil-rights left is so enamored of it).

And whenever the Democrats take control of the government we?re sure to get more of it, despite the glaring inconsistency between claims of disparate impact discrimination and the directly opposite claim made by these same civil rights activists when they are defending racial preference policies, a contradiction I?ve discussed many times, such as here:

One of the recurring defenses of racial preferences is that they are not really discriminatory. To qualify as discrimination, the argument goes, an action has to involve stigmatizing, degrading, or excluding individuals because of their membership in a particular racial or ethnic group.

I have mentioned too many times to link here that this argument is pure sophistry. Its own advocates don?t really believe it; otherwise they could not argue, as they do, that policies that are not racially motivated but that have a ?disparate impact? on minorities can be discriminatory.

But, hey. Whatever works.

ADDENDUM

Usually disparate impact complaints are lodged against some facially neutral policy that is claimed to disproportionately, and hence unfairly, affect a racial or ethnic group. In the Supreme Court case that the new Kennedy bill would overturn, for example, an Alabama requirement that drivers? license exams be given only in English was said to be national origin discrimination. (Actually, the Kennedy bill would overturn only the Court?s holding that there is no private right of action to claim disparate impact discrimination under the statute at issue, but that technicality needn?t concern us here. It certainly won?t constrain anyone very much from making broader disparate impact claims in the future if the bill passes.)

But not always. I have discussed, at great length (the last three fourths of this post) my involvement in EEOC v. Sears, Roebuck and Co 628 F. Supp. 1264 (1986), 839 F.2d 302 (1988). In that case the EEOC claimed (unsuccessfully) that Sears was guilty of disparate impact discrimination against women even though it could not identify a single policy or practice that produced the allegedly discriminatory effect. Its only evidence was what it termed a statistical underrepresentation of women in certain job categories.

Full post as published by Discriminations on January 31, 2008 (boomark / email).