In Defense Of Disparate Impact

Disparate impact occurs when employers erect false obstacles to employment that harm members of a protected class, like women, minorities, and older people.

Women could work as telephone operators, but not in sales or research.

Why did President Donald J. Trump recently issue an executive order “eliminating” the use of disparate-impact liability in employment matters?

Trump claims the disparate-impact theory violates the U.S. Constitution’s guarantee of equal treatment for all “by requiring race-oriented policies and practices to rebalance outcomes along racial lines.”

This is not the case.

The disparate-impact theory does not and never has required racial balancing of a workforce.

Moreover, contrary to Pres. Trump’s executive order, the disparate-impact theory does not encourage employers to abandon merit-based hiring decisions and pick applicants based on race.

Pres. Trump’s executive order is based on a fallacy.

If anything, the disparate-impact theory supports merit-based hiring by providing workers with an avenue to challenge seemingly neutral employer policies and practices that have an adverse and disproportionate impact on workers based on race, sex, color, national origin and religion.

One promise in Pres. Trump’s campaign was the elimination of diversity, equity and inclusion (DEI) policies in U.S. workplaces. There has been evidence for years that employers use the DEI to engage in discrimination.

A recently released poll by Resume Builder of 1,216 American businesses with DEI policies found that one in ten avoid hiring white men, and six in ten put diversity over qualifications when selecting candidates. About 35% of hiring managers with DEI programs feel reverse discrimination occurs.

Politicized federal court judges appear to have tolerated this gross and unjustified employment discrimination, seemingly to rectify past discrimination.

However, seemingly neutral policies and practices that lead to hiring discrimination are prohibited - not endorsed - by the disparate-impact theory. Indeed, the theory offers one of the only routes to challenge these discriminatory practices.

Imagine, for example, that the management of an office building or hotel requires all job applicants for the position of janitor to be a minimum of 5 feet, 9 inches tall to qualify for hire.

At first blush, this appears to be a “neutral” rule because it applies to everyone, but….