November 7, 2013

Disparate-impact doctrine has dangerous reach

By Disparate-impact doctrine has dangerous reach

A policy that the U.S. Census Bureau uses when hiring Census Takers is the subject of an enormous class action based on the disparate-impact doctrine. On a superficial level, this case seems different from some other outrageous examples of that doctrine at play because this case involves sympathetic plaintiffs and an arbitrary policy being challenged. Nevertheless, the disparate-impact doctrine is still unprincipled and unfair.

Under the Bureau policy, if an applicant for a Census Taker job has ever been arrested, the Bureau requests the applicant provide an official document showing the disposition of the matter. If the document isn’t received within 30 days, the applicant will not be hired. As this lawsuit’s complaint notes, many of these records no longer exist. As the Web site devoted to this lawsuit argues, this policy arbitrarily considers all arrests, including ones that never led to convictions. The policy also considers all convictions, even for non-criminal matters and crimes unrelated to Census Taker work. This policy seems like a good subject for a legal challenge based on the constitutional rights to due process of law and equal protection of the laws, which prohibit arbitrary governmental actions.

But instead of challenging the policy when irrationally applied in situations like those, the class action challenges the policy for having a “disparate impact” among racial groups. In other words, because  members of some racial and ethnic groups are more likely to have been arrested than others, the policy disproportionately results in their applications being denied. Title VII of the federal Civil Rights Act of 1964 prohibits employment practices that create disparate impacts among protected classes, which include race and sex.

Despite this lawsuit’s sympathetic plaintiffs and the irrationality of the hiring policy, the lawsuit can’t avoid the absurd reach of the disparate-impact doctrine. In particular, under that doctrine, a Census Bureau hiring policy could be illegal even if it were limited to screening applicants convicted of serious crimes that are relevant to Census Taker work. Census Takers go to people’s homes. So, it’s entirely reasonable that persons convicted of, say, sexually assaulting children or burglarizing homes not be hired to visit people in their homes.

An example will put into perspective the ridiculous reach of the disparate-impact doctrine’s potential to obstruct sound hiring policies. Men commit many more serious crimes than women do, so a rational Census Bureau hiring policy would screen out more male applicants than female ones on the basis of criminal history. But because sex is a protected class under Title VII, the disparate impact would allow unsuccessful male applicants to sue the Census Bureau under Title VII. Simply put, such a hiring policy discriminates against certain criminals, and Title VII turns that into “discrimination” against men because more men than women are criminals.

Under that example, if male applicants were to sue the Census Bureau, it would have two options. First, it could begin hiring Census Takers without considering their criminal records, thereby employing some dangerous criminals to go to people’s homes. Second, it could “compensate” for the “discrimination” against men by using a gender-based hiring preference – in other words, by discriminating against innocent female applicants. That would be unfair because the male applicants who were discriminated against were justifiably discriminated against based on their criminal records, not based on their gender. If a man burglarizes a home, the Census Bureau behaves fairly when it refuses to employ him to go to people’s homes. The fact that men commit serious crimes more often than women do should not entitle men to preferential treatment – and the disparate-impact doctrine would do just that.

So, even if the plaintiffs in this class action should have some legal relief in a fair society, the disparate-impact doctrine should not provide the basis for that relief. That doctrine necessarily creates discrimination, and it often applies in very undesirable ways.

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