Conservatives have long sought to eliminate disparate-impact regulations. In Donald Trump, a real-estate baron whose company was sued by the Justice Department for refusing to rent apartments to black people, they finally found an eager champion.
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“The Trump administration has been systematically undermining civil rights and efforts to address racial discrimination,” said Vanita Gupta, head of the Leadership Conference on Civil and Human Rights and former head of the Justice Department’s civil-rights division under Obama. “Disparate-impact liability can uncover disguised discriminatory intent and/or unconscious prejudices. And unconscious bias can have the same effect as overt bias: It can undermine equal opportunity.”
Disparate-impact discrimination is not a simple question of discrete outcomes; on their own, divergent results do not prove discrimination. Rather, the regulations prohibit behavior that would discriminate if there are other ways to achieve the desired objective, or if there’s no valid interest being pursued. When the federal government alleges discrimination on the basis of disparate impact, such as in mortgage lending or homeowner’s insurance, it performs a regression analysis to prove that, all other things being equal, discrimination is at play. The idea is to prevent such regulations against discrimination from being gamed.
In the early 2000s, landlords in St. Paul, Minnesota, alleged discrimination on the part of the city, which had insisted that their apartments have basic amenities such as heat and pest control. Their claim was that the new regulations would drive up the cost of housing or put them out of business, which would have a disparate impact on their minority tenants. One civil-rights advocate called it a scheme to assert a “fundamental right under the Fair Housing Act to put minorities in crappy housing.” Financial institutions and insurance companies argue that the regulations make otherwise innocent or benign business decisions illegal, even when companies aren’t taking cynical advantage of them.
The Supreme Court ultimately issued a 5–4 ruling in a separate case upholding disparate-impact discrimination regulations under the Fair Housing Act, but the opinion was written by Justice Anthony Kennedy. He has since been replaced by Brett Kavanaugh, who angrily warned the left at his confirmation hearing that “what goes around comes around.” Opponents of disparate-impact rules might prevail, given a second day in a Trumpified high court. Without such regulations, illegal discrimination, even on a grand scale, is simply a matter of finding a plausible pretext.
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“On-the-record discriminatory comments made by officials still happen, but are exceedingly rare,” said Kristen Clarke, executive director of the Lawyers’ Committee for Civil Rights. “The broader disparate-impact standard allows us to challenge and remedy policies that are seemingly benign but have a discriminatory effect on disadvantaged groups as a result of long-standing, historical, intentional discrimination.”