The burden of proof then falls on the decision-maker (e.g. employer), i.e. guilty until proven innocent.
This seems crazy when you consider processes with any randomness.
There's no reason why every single company, for every role, would naturally have demographic proportions matching the relevant population for every single identity group.
If you toss a coin ten times and get 6 heads and 4 tails, that doesn't mean the coin is biased.
The EO is right: disparate impact doctrine has forced employers to discriminate based on race, so they can maintain proportions.
Should each NBA team be required to make sure the next player they hire has what you call a 'heterogenous effect' on the team composition with respect to identity groups?
- It imposes liability for neutral policies based solely on statistical outcomes, ignoring discriminatory motive. Example: Griggs v. Duke Power invalidated a diploma requirement due to impact alone.
- It prioritizes group statistical parity over individual qualifications, potentially invalidating useful criteria. Again: Griggs invalidated tests because of their statistical impact.
- It incentivizes racial quotas: fear of liability drives companies (and college admissions offices) toward managing numbers by race, undermining the principle of equal treatment. Example: New Haven (Ricci) discarded firefighter exam results specifically to manage racial outcomes.
- Trying to avoid disparate impact liability can itself constitute intentional discrimination against another group. (Ricci paradox, same case as above.)
- It enables lawsuits against essential, neutral practices based purely on statistical correlations. Example: Challenges to voter ID laws based on disparate ID possession rates. Challenges to 'rat control' regulations based on disparate impact on rents.
- The "business necessity" defense is often hard to prove and subject to judicial second-guessing. Example: Duke Power failed to prove its hiring requirements were essential.
- It conflicts with the Equal Protection Clause's requirement of discriminatory intent for government liability.
- It creates the potential to challenge almost any neutral policy with unequal outcomes. Example: suspensions and other school discipline must be meted out 'fairly' between different races.
Politics should not be handled in a stateless manner without understanding root cause. You pick an issue, with 10 imperfect solutions over 50 years and decide to remove only the things you don’t like, you will leave it in a terrible state that will need to be fixed by your replacements.
Are you suggesting that disparate impact is part of a delicate system that reduces or eliminates unfair discrimination? And that its elimination would make the situation worse than it is today?
If so, why?
I've given you many reasons why disparate impact is bad and has bad effects. You have given no reasons why, with the state of the country as it is today, it is helpful. Your argument seems to boil down to (i) well, there must have been some reason for its introduction, and (ii) status quo is a fragile system that must be changed all at once and not piecemeal.
Employers aren't choosing inferior employees because they don't like certain ethnicities or sexes. They want to make money and get the best employees they can.
You claim that without disparate impact there are groups who would be discriminated against.
I don't believe it, so I asked for an example.
pmags•9mo ago
https://www.nytimes.com/2025/04/23/us/politics/trump-executi...
rahimnathwani•9mo ago