Nearly every day of the Trump II presidency provides another indisputable example of the White nationalism that fuels MAGA. The most recent example is the Justice Department’s elimination of its “disparate impact” regulations: As Politico has reported, “The Justice Department on Tuesday moved to end long-standing civil rights policies that prohibit local governments and organizations that receive federal funding from maintaining policies that disproportionately harm people of color,”
So what, you might ask, is “disparate impact”?
Disparate impact is a term describing practices that are facially neutral—in other words, practices or laws that do not explicitly discriminate—but that fall more harshly on a minority or disfavored group and can’t be justified by business or governmental necessity.
Let’s say a rural county has a rule that, in order to become a licensed carpenter–one of the better jobs in that county– someone must be a high school graduate and weigh at least 180 pounds. Neutral, right? Except that in that county, Blacks are less likely to have completed high school, and women are far less likely to weigh at least 180 pounds. Proponents of the rule defend it by explaining that carpenters must be able to read plans and must be able to pick up at least 40 pounds of lumber.
Rather obviously, the rules mandating high school graduation and 180 pounds are ill-suited (at best) to ensure applicants will meet those goals. If that was really the (entirely appropriate) reason for imposing restrictions, applicants for licensure would be tested to see if they could read plans and asked to demonstrate their ability to heft the required pounds of lumber. Even if the discriminatory impact of the rules wasn’t due to intentional discrimination, their impact was clearly discriminatory.
Allegations of intentional discrimination can be hard to prove. In my made-up example (based on an old case), absent probative evidence that the people creating the rules had intended to make it difficult for women and Black folks to become carpenters, a lawsuit alleging discrimination would fail. The ability to base one’s case on a demonstration of the real-world effects of such rules, and the existence of reasonable alternatives better suited to the purported goals, would be far more likely to succeed.
Which is why our racist and misogynist administration wants to go back to a time when it was necessary to prove intent.
The Department of Justice made the change in order to comply with one of Trump’s numerous executive orders. In an April Order, he explicitly called for an end to disparate-impact liability for discrimination and ordered federal agencies to stop enforcement of anti-discrimination laws based on disparate impact theories.
The disparate impact rule has been in effect for over fifty years. It was based upon Title VII of the Civil Rights Act of 1964, and was firmly established in 1971, in the case of Griggs v. Duke Power Co. Duke Power–the employer– required applicants to have a high school diploma and to take aptitude tests for certain jobs, requirements that were demonstrably not job-related and that disproportionately excluded Black applicants. The Supreme Court in that case held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”
The Justice Department on Tuesday moved to end long-standing civil rights policies that prohibit local governments and organizations that receive federal funding from maintaining policies that disproportionately harm people of color.
Repealing the government’s 50-year-old “disparate impact” standards will make it harder to challenge potential bias in housing, criminal law, employment, environmental regulations and other policy areas.
Making it harder to challenge discrimination–making it easier to keep those “Others” in subservient positions– is both the basis of Trump’s support and the over-riding purpose of this profoundly unAmerican administration.
I’d say “for shame!” if the horrible people in this administration were capable of feeling anything akin to shame–or even embarrassment.
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