Disparate impact doctrine is at risk

by Mike Andrew - SGN Staff Writer

The Trump administration is considering rolling back key civil rights regulations, according to a January 3 story in the Washington Post.

An internal Department of Justice (DOJ) memo obtained by the newspaper directs federal civil rights officials to figure out how to reverse decades-old rules affecting education, housing, and other aspects of American life.

Similar action is underway at the Department of Housing and Urban Development and is being considered at the Education Department.

At stake are the federal government's 'disparate impact' regulations that allow discrimination lawsuits to be brought against both government and private entities.

Under the concept of disparate impact, actions can amount to discrimination - and therefore be illegal - if they have an effect that disadvantages a protected class, even if that was not the intent of the action.

For example, a New York lawsuit now in progress charges that a large apartment complex in Queens will not rent to anyone with a criminal record, and that this has the effect of discriminating against African-American and Latino renters, who are statistically more likely to have criminal records than white people. Even if the property managers did not intend to exclude people of color, the effect of their rule does exclude them and therefore is in violation of federal civil rights laws.

As another example, in Maryland, civil rights activists filed a complaint with the federal government after the state took away funding from a light-rail project that would have helped mostly African-American residents of Baltimore. Instead, the money went to bridge and road projects that served mostly white residents elsewhere in the state.

The Obama administration used the disparate-impact doctrine to challenge local school systems that discipline students of color at greater rates or more severely than white students. In a 2014 advisory to school districts, Obama's DOJ told schools they may be guilty of racial discrimination if students of color are punished at higher rates.

Disparate impact was written into the original regulations that implemented Title VI of the 1964 Civil Rights Act, which bars discrimination based on race, color, or national origin by entities, including schools, that receive federal funding.

'Disparate impact is a bedrock principle,' said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law. 'Through the courts, we've been able to marshal data and use the disparate-impact doctrine as a robust tool for ferreting out discrimination.'

Disparate-impact claims can also be made under federal laws barring discrimination on the basis of sex, which means that it can be a legal avenue for LGBTQ Americans to seek remedies under federal law even if we are not explicitly protected.

The Obama administration ruled in 2012 that Trans people are protected under laws prohibiting sex discrimination. The Equal Employment Opportunity Commission (EEOC) later ruled that the word 'sex' also protects Gay, Bi, and Lesbian individuals against discrimination based on their sexual orientation.

Because proving disparate impact is much easier than proving discriminatory intent, the legal doctrine has provided a key strategic approach for human rights organizations, and conversely it has been a target for right-wing legal scholars who have hoped to impede civil rights lawsuits.

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