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Policy Summary: For the past year, there has been a movement in the Trump Administration to roll back civil rights protections by targeting a legal rights standard that has been used for decades – the disparate – impact rule. In 1971, the U.S. Supreme Court decided Griggs v. Duke Power Co. which first recognized the disparate – impact rule. The case dealt with racial discrimination under Title VII of the Civil Rights Act of 1964 and the hiring practices of the power company. The Court there stated that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” The rule was thus recognized as a legal theory to bring a lawsuit and the legal standard to prove discriminatory actions. This legal rule is the opposite of the disparate treatment legal rule. That rule permits a lawsuit if a plaintiff can prove that a party or policy was enacted with the purposeful intent to discriminate against a certain group of individuals. Both theories are available as parts of various agency regulations while others have been enshrined in statutes, such as voting rights laws.

For the last year, the Trump Administration has focused on only supporting disparate – treatment claims (intentional discrimination claims) and has made efforts to try and rescind disparate – impact rules, most notably at Housing and Urban Development (HUD) and with racial disparity school discipline guidance rules at the Department of Education. LEARN MORE 

Analysis: The key thing to remember about the disparate – impact and disparate treatment legal rules is that a disparate – impact claim can be brought in court if there is a policy that does not appear to be discriminatory based on the text or words of the policy but the effect of the policy as implemented results in discrimination against a protected class of people. A disparate treatment legal theory is one where the words or text of the policy is clearly discriminatory against a class of people.

This distinction is important because it helps to illustrate the direction that the Trump Administration is trying to chart in the field of civil rights. The reason that the Trump Administration and conservatives want to eliminate disparate – impact rules from federal agency regulations and other areas of the law is because they prefer to only punish those who intentionally engage in the various types of discrimination. They do not find it fair that a neutral policy that inadvertently discriminates against a class of people should end up with someone punished when there was no intent to discriminate. However, supporters of the disparate – impact rules argue that the disparate – impact rules are necessary because it can often be difficult, if not impossible, to prove that a person or entity intentionally discriminated against a class of people. Most people are more careful in their communications, such as e-mail, and will take care to not say anything that could implicate themselves. And, critical documents can be lost with the passage of time and essential decision – makers eventually die which makes it harder to prove that there was an intentional effort to discriminate.

The efforts currently going on at HUD and the Department of Education to try and eliminate this useful legal theory is disconcerting and could have far – reaching implications beyond HUD and DOE. The issue could likely affect transgender issues (serving in the military, gender identity bathrooms) and the ability to pursue a claim collectively as a class. The same can be said with community claims regarding policing and law enforcement issues. These rules are scattered through a number of agency regulations and a number of statutes but they must be monitored closely to ensure that a valuable legal tool to fight racial discrimination in a number of sectors of American society is not removed. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

Photo by Kayle Kaupanger

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