On this blog we have often talked about the perils of disparate impact theory. Disparate impact forces employers to use a race-first mentality to hiring, firing, and promotion decisions. As I wrote in this op-ed in the Washington Times, “[i]nstead of focusing on concrete examples of bias by identifiable bureaucracies or individuals, disparate-impact analysis looks to statistical disparities. It says courts should infer discrimination if the results of a test or policy don’t parallel the community’s racial makeup.” To put it mildly, the Obama Administration disagrees.
First, the Obama Administration thought employers shouldn’t be able to look at criminal records when determining whether to hire someone. [Indeed, the EEOC recently put out a memo solidifying this policy.] Then, the Administration said it was illegal for employers to use a background credit check when hiring someone. Next, the Administration said employers could not look at whether an individual had a high school diploma. And, earlier this year the Administration pressured the City of St. Paul to abandon its Supreme Court case that would have challenged whether disparate impact theory was cognizable under the Fair Housing Act.
Now, the Administration says it will sue high schools that punish misbehaving students in a way that results in a disparate impact. So, before a school gives a kid detention it has to first ask, “Have we punished enough [insert race] kids yet?” As Ted Frank points out, this policy is going to have the worst effect of well-behaved black children. The Obama Administration is out of control, and must be stopped. Disparate impact is an unconstitutional doctrine that forces employers to discriminate in order to acheive a “proper” racial balance in their work force.