Posted on 12/16/2025 12:39:21 PM PST by E. Pluribus Unum
The Justice Department last week issued a rule doing away with “disparate impact” liability under one section of the 1964 Civil Rights Act. “Our rejection of this theory will restore true equality under the law by requiring proof of actual discrimination, rather than enforcing race- or sex-based quotas or assumptions,” Assistant Attorney General Harmeet Dhillon said at a press conference last week.
More such actions are expected under an April executive order—and none too soon. Disparate-impact theory, which recasts neutral standards as discriminatory, was imposed undemocratically and conflicts with the Constitution. The Supreme Court, which has sent mixed signals over the years, should eventually reject it.
Disparate-impact theory allows a discrimination plaintiff to prevail based on statistical disparities in outcome, with no need to show an intent to discriminate. The theory appeared nowhere in the 1964 act, but the Justice Department grafted it onto Title VI, which prohibits discrimination by educational institutions and other recipients of federal money, via a 1966 regulation. The Equal Employment Opportunity Commission did the same for Title VII, which bars employment discrimination.
In Griggs v. Duke Power Co. (1971), the Supreme Court unanimously upheld the EEOC regulation. The justices held that Duke Power had discriminated against black employees by requiring applicants for promotion to have a high-school diploma and pass two aptitude tests. Unless the employer could prove a “business necessity” for policies with a disparate impact, it would be liable for discrimination.
Yet in Washington v. Davis (1976), the court reached an opposite conclusion. The District of Columbia tested verbal and written skills for police applicants via a test used by the federal government to screen prospective employees. Black applicants sued, arguing that the test was discriminatory because blacks failed at a higher rate than whites. What made this case different from Griggs was that at...
(Excerpt) Read more at wsj.com ...
Where do I go for my reparation?
restore true equality under the law by requiring proof of actual discrimination, rather than enforcing race- or sex-based quotas or assumptions,”
Should never have been allowed in the first place.
“Desparate impact” is such a mindless, inane principle.
It’s more of a religious doctrine, that different outcomes can ONLY be due to race and discrimination.
“When people get used to preferential treatment, equal treatment seems like discrimination,”
Thomas Sowell
Assistant Attorney General Harmeet Dhillon —> Attorney General Harmeet Dhillon
laer
From a liberal viewpoint, the worst thing about “disparate impact” is that it confirms things they’d rather deny.
I was a teenager in the summer of 1978 when the Supreme Court rendered its decision in the “Bakke” case, enshrining affirmative action into our laws. I haven’t reviewed the decision recently, but I do recall that at least one of the justices said that the necessity for affirmative action should disappear within a reasonable period of time, meaning that the decision wouldn’t last forever. Well, it has been nearly 50 years (close to 20% of the time that we have been a nation), and we have had a half black person of dubious origin elected twice to be President of the United States. I would say that official discrimination, which the Bakke decision was aimed at stopping, is no longer a thing. Time to get rid of not only Bakke, but all other similar decisions. The way to end race discrimination is, quite simply, to end race discrimination.
Bakke was effectively overturned in 2023.
Correct—of course enforcing equal treatment for students will require vigilance and a willing to litigate like junkyard dogs.
I’ve always believed this was unconstitutional. It literally allows a plaintiff to assume every element they have to prove. Undesirable outcome always = illegal act. By law.
Well..yippee..
I was in HR when it started...hated it, refused to understand and promote it...altho I had to write affirmative action plans for my boss that somehow reflected it. This just reinforces how I thought...and I knew I was right.
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