March 12, 2013

Opposing disparate impact theory doesn't mean ignoring disparities

By Joshua P. Thompson Senior Attorney

PLF opposes the use of disparate impact theory to strike down race-neutral laws that only have a disproportionate racial effect.  For example, PLF supported Merrill Lynch, when its policy of promoting successful brokers was challenged as having an illegal disparate impact.  We supported New Haven, Connecticut in a disparate impact challenge when the city used a merit-based written test to promote and hire firefighters.  And PLF has often taken the position that the disparate impact provisions of Title VII violate the Equal Protection Clause because they force employers to engage in racial balancing to ensure their workforce has the “proper” racial mix.

But this does not mean that PLF is unaware that the consequences of government policies are sometimes felt harder by individuals of certain races.  For example, it is sad and unfortunate truth that occupational licensing laws are felt hardest by the poorest Americans.  As my collegue wrote in testimony submitted to the U.S. Commission on Civil Rights: “[E]vidence shows [that occupational licensing laws] do little to protect consumers.  Rather, they are frequently used by established businesses to prevent competition from newcomers who lack the political influence or personal connections necessary to get licenses.”

While this means immigrants and racial minorities are affected more severely than the upper class, it does not make them illegal.  Occupational licensing laws are often unconstitutional.  But that is because they unduly infringe on individuals’ right to earn a living, or they abridge individuals’ privileges or immunities of citizenship.

It is also true that disparities can result from actions that are perfectly benign.  No one suspects that nursing schools are discriminating against men, even though roughly 85% of nursing students are female.  No one accuses the NBA of discriminating against Asians, even though only 1% of the players are Asian.   Philosopher Robert Nozick famously made this point with his Wilt Chamberlain example.  Disparities are the natural result of living in a society that allows individuals to make choices.

Further, while PLF opposes disparate impact theory as vehicle to force employers to adopt race-conscious business practices, that does not mean that race-neutral laws which burden minorities are unremarkable.  For example, legislators should take note of laws that make it more difficult for minorities to find work, or laws that burden minorities’ property rights, or laws that force minority children to attend failing government schools.  Legislative solutions to these harms should be sought out.  Being cognizant of the racial impact of laws, however,  does not mean that government can — or should — force racial balancing into all facets of American life.  While eminent domain abuse is felt hardest by minorities, the solution isn’t to start bulldozing the suburbs; it is to restrict government’s ability to use eminent domain.

Lastly, it should go without saying, that race-neutral laws enacted with a discriminatory purpose are rightly held unconstitutional.  For example, when San Francisco passed an ordinance that required a individuals to get a license to operate a laundry business, the Supreme Court was correct to hold that it was a violation of the Equal Protection Clause.  The evidence clearly showed that, even though the law was neutral on its face, San Francisco had only enacted the ordinance to exclude Chinese immigrants from working in the laundry business.

Disparate impact theory is problematic and unconstitutional for all of the reasons I have made clear in previous posts.  Nevertheless, we should be cognizant of laws that fall disproportionately on the poorest members of our society.  There is nothing inconsistent with those two positions.

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