Many Americans are unaware of “disparate-impact liability” (DIL) and how it stands as a bulwark and significant tool in the fight for civil rights. It was perhaps inevitable that it, like so many of our legal safeguards, is now threatened by the Trump administration and slated for the dustbin of history.
Disparate-impact liability is at the very core of the Civil Rights Act of 1964, and often used to seek the source of discrimination against people of color. If Trump follows through on this nefarious promise it will, as others have noted, defang a tenet that for years has been indispensable in protecting those assailed by racism and discrimination.
Removing this bedrock is consistent with Trump’s wide-ranging plan to eliminate any and all-things related to D.E.I. (Diversity, Equity, and Inclusion).
We agree wholeheartedly with Dariely Rodriguez, acting co-chief at the Lawyers’ Committee for Civil Rights Under Law, that “this order aims to destroy the foundation of civil rights protections in this country, and it will have a devastating effect on equity for Black people and other communities of color.”
Such a move by Trump is reminiscent of the evisceration of the Voting Rights Act in 2013 with Shelby v. Holder. Section 5 of that provision required jurisdictions with a history of voting rights violations to undergo a preclearance from the Justice Department before changes in their voting laws. Like this law, the disparate-impact liability depends in a large measure on a Justice Department alert to such misgivings, and we know that’s an additional liability we face with Trump’s minions holding all the cards.
At play in these renderings is the notion that racism and discrimination are no longer problematic, and we know the absurdity of such thinking. We know, too, how deleterious the eradication of the DIL ramifies into voting rights.
Trump is taking such steps under the wrongful conclusion that he is restoring meritocracy while undermining democracy.
To accept Trump’s view on DIL is to believe that it imperils the effectiveness of civil rights laws, and so we are back to his fiat and cockeyed view that DIL laws are inconsistent with the Constitution. So, you see how hopeless we are and caught in a tautology that echoes the Supreme Court’s reasoning that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Go figure!
