The War Between Disparate Impact and Equal Protection Continues

Townhall.com ^ | December 9, 2014 | Ilya Shapiro

[Kaslin]

For decades, courts have been struggling to reconcile two conflicting theories of what constitutes unlawful discrimination. The first theory, often called “disparate treatment,” reflects the commonly understood meaning of “discrimination.” Under this theory, a government action discriminates—violates the principle of equal protection or equality under the law—if it explicitly or implicitly treats members of one race or other special group differently from others. Examples of disparate treatment include Jim Crow’s black codes, university admission caps and quotas, and policies excluding women from certain positions.

The second theory, known as “disparate impact,” argues that the definition of discrimination should be much broader and include laws and policies that, while neutral in their application and operation, disproportionately harm members of a specific group. An example of a rule that would be considered discriminatory under this theory, but not under disparate treatment, would be a requirement that all soldiers in a particular unit be over six feet tall—because, as a statistical matter, far fewer women would be eligible than men. In several othercases, Cato has argued that allowing disparate impact theory claims against government bodies is problematic because a government can assure that a rule doesn’t accidentallyproduce statistically unequal outcomes is to engage in intentionally discriminatory policies—like quotas—that can ensure a specific outcome.

Here is the case that proves this point: Buffalo makes promotions within its fire department on the basis of both merit and seniority. Firefighters who wish to be considered for advancement have to pass a set of exams. Those who are successful are placed on a list of candidates eligible for promotion within a set time period. If a candidate isn’t promoted within that period, however, the promotion qualification expires and he’s forced to re-take the exams.

During one administration of the exam, the only successful candidates were white. Because that was statistically unlikely given the racial makeup of the department, the city feared that if it promoted the successful candidates, it would be sued for having a policy that had a disparate impact on non-white firefighters. Its solution was to make a racially based decision not to promote any of the qualified candidates, allowing their promotion-list placements to expire.

In a litigation battle that has progressed in fits and starts over many years, Cato has now joined the Pacific Legal Foundation and other concerned groups on a brief reminding the New York Court of Appeals (that state’s highest court) that allowing government to engage in disparate treatment to avoid accusations of disparate impact simply trades one form of discrimination for another. And, as Chief Justice John Roberts wrote for a Supreme Court plurality back in 2007, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

The New York Court of Appeals will hear argument in the case of Margerum v. City of Buffalo on January 6 in Albany.For more on the “war between disparate impact and equal protection”—in the context of a previous firefighter-promotion case—see this prescient essayby Kenneth Marcus in the 2009 Cato Supreme Court Review.

[Da Coyote]

Funny, we had “disparate impact” when I flew fighters.

There was a most definitely observable “disparate impact” on all those who didn’t quite hack it...sometimes resulting in an intimate appointment with the earth.

[BenLurkin]

It is an affront to our national intellect to dignify this discussion by even suggesting that there are two competing “theories.”

There is what is unlawful discrimination and it IS disparate treatment. That’s not a theory. It is reality.

Then there is the tactic of alleging disparate impact. Also not a theory —strictly a tactic.

The goal of the tactic: to abuse well intentioned laws against discrimination (see above) by warping them into tools for social engineering wielded by the legions of unaccountable Pinkos that infest the Federal bureaucracies.

[MrB]

“disparate impact” is absolutely bogus as a concept for determining cause.

It inherently assumes all other variables are equal.

It’s a concept used to fool those who don’t/can’t think logically.

[Eric in the Ozarks]

It’s what happens when the Left gets control of the language.

[goodnesswins]

I think I quit HR at the time “disparate impact” came into vogue....just COULD NOT DEAL WITH the CRAZIENESS ANYMORE!

[Amendment10]

"For decades, courts have been struggling to reconcile two conflicting theories of what constitutes unlawful discrimination."

I think that both examples of institutionally defined discrimination in the referenced article wrongly ignore constitutional checks and balances, particularly with respect to 10th Amendment-protected state sovereignty.

More specifically, the states are free to discriminate on the basis of anything that they don’t amend the Constitution to not discriminate against.

Please bear in mind that the Constitution’s Article V and the 10th Amendment are probably some of the best kept secrets in DC.

[I want the USA back]

Disparate impact. If I don’t study before an exam, or goof off, I fail. The guy who studies gets a better mark. That’s the disparate impact of his studying and my goofing off. It’s not the fault of the exam.
Apply what I just said to the fake phoney fraud concept of disparate impact.