Yet another Executive Order was signed by President Trump, this time declaring the death of disparate impact liability.
A bedrock principle of the United States is that all citizens are treated equally under the law. This principle guarantees equality of opportunity, not equal outcomes. It promises that people are treated as individuals, not components of a particular race or group. It encourages meritocracy and a colorblind society, not race- or sex-based favoritism. Adherence to this principle is essential to creating opportunity, encouraging achievement, and sustaining the American Dream.
Not only had this long been uncontroversial, but it had been a guiding liberal principle in the fight against racism and sexism. Over the past decade, the fight for equality had been chiseled away with the fight for equity, where purposeful remedial discrimination is employed in the quest for equal outcomes. It’s not that equal outcomes wouldn’t be a wonderful thing if they happen, but that requiring discrimination to eliminate discrimination is still engaging in unlawful discrimination. For those of us who fought to end discrimination on the basis of race and sex, engaging in discrimination for any reason was not a viable solution.
But a pernicious movement endangers this foundational principle, seeking to transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics, regardless of individual strengths, effort, or achievement. A key tool of this movement is disparate-impact liability, which holds that a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed. Disparate-impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability. It not only undermines our national values, but also runs contrary to equal protection under the law and, therefore, violates our Constitution.
In the 1971 case of Griggs v. Duke Power, the Supreme Court recognized disparate impact theory in Title VII employment discrimination claims. At the time, disparate impact created a rebuttable presumption of discrimination, which then shifted the burden of proof back onto the employer to prove that the employment practices at issue bore no discriminatory intent. The problem, the Court recognized, is that seemingly neutral employment practices could appear as a subterfuge discriminatory intent, thus making it difficult, if not impossible, for the party claiming discrimination to prove his case.
Over time, however, disparate impact became, as Trump called it, a “near insurmountable presumption.” Indeed, if there was a disparate impact, meaning that there was unbalanced outcome on a protected class, discrimination was proven. And the theory moved from Title VII to the rest of the Civil Rights Act, including Title VI and Title IX. Remember when universities began cutting men’s sports in order to equalize the number of male and female students on teams?
It wasn’t so much that the law required it as that the bureaucrats who enforced the law found it all too easy to just count heads and, based on any disparity, conclude that there was discrimination. Since then, the problems with disparate impact worsened, until the past few years when it became all but conclusive. There could be no reason, none, why disparate outcomes exist, no matter what the explanation or justification might be.
On a practical level, disparate-impact liability has hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers because of the specter that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits. This has made it difficult, and in some cases impossible, for employers to use bona fide job-oriented evaluations when recruiting, which prevents job seekers from being paired with jobs to which their skills are most suited — in other words, it deprives them of opportunities for success. Because of disparate-impact liability, employers cannot act in the best interests of the job applicant, the employer, and the American public.
Disparate-impact liability imperils the effectiveness of civil rights laws by mandating, rather than proscribing, discrimination. As the Supreme Court put it, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Disparate-impact liability is wholly inconsistent with the Constitution and threatens the commitment to merit and equality of opportunity that forms the foundation of the American Dream. Under my Administration, citizens will be treated equally before the law and as individuals, not consigned to a certain fate based on their immutable characteristics.
The net result was that employers and universities were constrained to indulge in discrimination in order to appear as if they weren’t discriminating. To rationalize this state of affairs, a “woke” redefinition of discrimination was crafted, where only the privileged could discriminate, such that blatant race and sex discrimination in favor of the “marginalized” couldn’t possibly be discriminatory.
And so, by EO, Trump has declared it to be his policy to end disparate impact liability.
Sec. 2. Policy. It is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.
The primary impact of this EO is to direct the Equal Employment Opportunity Commission and the Department of Justice to “deprioritize” disparate impact cases, and to revise rules, regulations and guidance to eliminate disparate impact theory. What this will do, at least for the balance of Trump’s term, is not just put an end to enforcement actions in which the theory of liability is grounded on disparate impact, but try to reverse the evidentiary presumption established by the Supreme Court in Griggs.
This will likely give rise to a new slew of suits, since an Executive Order doesn’t “trump” a Supreme Court decision. And while there is merit to Trump’s effort to put an end to disparate impact as essentially conclusive proof of discrimination, it takes the solution too far just as the proponents of disparate impact took the rebuttable presumption too far. Disparate impact theory has its place, and putting it back into that place would have been the right way to deal with woke overkill.