The Trump administration is looking to either eliminate or severely restrict regulations designed to protect people from discrimination in a number of categories, the Washington Post reported Thursday.
The Department of Justice is asking federal agencies to assess ways to scale back regulations that allow for “disparate impact” legal challenges to discrimination.
Disparate impact refers to discrimination that occurs against a group even when there is no clear evidence of an intent to discriminate.
For example, an employer might implement a broad restriction on hiring people who have criminal records. Such a policy might not mention race at all, but because of racial disparities in the criminal justice system, it could end up leading to far more discrimination against people of color.
Disparate impact litigation would be a vehicle for challenging that policy as racial discriminatory, even if there’s no evidence that the employer put the policy in place in an attempt to give white candidates an advantage.
The approach is not new; in fact, it’s been a practice dating back a half-century to when civil rights laws were first put on the books. And litigation based on showing a disparate impact has been used to combat discrimination in just about every way, including employment, housing, education, and credit.
The administration has already demonstrated a willingness to gut this important tool for combatting discrimination.
Last month, the Federal Commission on School Safety recommended rolling back disparate impact policies in education. These policies sought to minimize the amount of punitive discipline for minor infractions, because such discipline was disproportionately applied to students of color and students with disabilities — fueling the so-called “school-to-prison pipeline.” The commission claimed without a clear explanation that allowing such discipline would somehow protect students from gun violence.
There are many inconsistencies in terms of when courts will consider disparate impact claims. For example, the Supreme Court ruled in 2015 that disparate impact claims are viable in terms of housing complaints. But there are other forms of discrimination where the Court has not guaranteed that the claims can be heard.
Tom Silverstein, associate counsel at the Lawyers’ Committee for Civil Rights, explained to ThinkProgress that where the Supreme Court has not resolved the issue, the administration will try to prohibit bringing disparate impact claims at all. Where the Supreme Court has said such claims are viable, the administration could place many limitations on them that make it far harder for them to succeed.
In that 2015 case, the Court may have upheld disparate impact claims in housing, “but there was no holding on how you prove a disparate impact claim or what the standard of proof is,” Silverstein explained. New regulations could heighten the standard for showing a causal relationship between a company’s policy and its disparate impact, or they could burden plaintiffs with having to prove that a less discriminatory policy would still serve the company’s interests. These would shift the advantage more to the company discriminating and make it harder to bring successful claims against them.
The Department of Housing and Urban Development already has indicated that it is seeking to undo its disparate impact rule, which would make it easier for insurance companies to implement policies that discriminate against minorities.
In the case of lending, the Supreme Court has not weighed in on whether disparate impact claims are viable under the Equal Credit Opportunity Act. Silverstein offered a hypothetical situation in which a company’s car purchase loans resulted in people of color disproportionately paying higher interest rates on their vehicles. “If it’s not an instance of intentional discrimination — or it is but you can’t prove that without going through discovery — it makes it harder to challenge that kind of discrimination.”
Sasha Samberg-Champion, a civil rights lawyer at Relman, Dane & Colfax, told ThinkProgress that the proposed changes are “harmful” because they will make it far harder to prove discrimination is taking place. An insurance company, for example, might be relying on a certain automated algorithm that ends up making it harder for people of color to obtain coverage, but it might not be possible to trace that algorithm back to specific individuals or any intent to discriminate.
“There may be some bad intent going on as well,” he said, “but it’s virtually unknowable when you begin investigating and begin litigation. You know there’s a bad practice that has a severe disparate impact on minority populations, and you know it’s irrational and has no justification. But you don’t know why unless they’re stupid enough to announce that they’re bigots.”
The administration’s restrictions could lead to a situation where plaintiffs basically have to find some clear evidence that a company was trying to discriminate, not just show that they happened to be discriminating. “If you make it a requirement that you prove intent, you’re making it impossible to bring litigation for practical purposes, even if in the real world there is bad intent,” he said.
There has long been a partisan divide on disparate impact litigation, with Republican presidential administrations dating back to Ronald Reagan opting simply not to pursue such cases. But completely dismantling the regulations that allow for them is a substantial change.
“This is a major attack on civil rights enforcement,” said Joe Rich, who recently retired from the Lawyers’ Committee for Civil Rights. “In the past, they would not use disparate impact, but they would not try to change the regulation. They would not try to destroy it,” he told ThinkProgress. “If you get rid of the regulation, there will be nothing to enforce.”