Disparate Impact and the New Supreme Court

Disparate Impact occurs when a ‘protected group’ or ‘protected class of people’ are disproportionately impacted by policies, practices, rules, or other systems that appear to be neutral, while disparate treatment is intentional discrimination.[1] Both terms refer to discriminatory practices, however, many people still have trouble believing in, understanding, and even ‘seeing’ disparate impact. This presents a huge problem for those protected groups who are systematically affected by biases and discriminatory practices.

In legal terms, “disparate impact is a legal doctrine which declares that a policy can be considered discriminatory if it ‘adversely impacts’ a group based on that group’s traits, such as its race, color, religion, or sex. This is especially true when there is no legitimate need for such a policy. If someone finds a policy or practices to be discriminatory, then he [she/they] is [are] permitted to challenge it, claiming it has an “adverse effect” on those who would be otherwise protected. Typically, disparate impact is considered when a policy that is unintentionally discriminatory becomes discriminatory when put into practice.”[2]

The origin of this law is Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968 [3], and was pioneered by civil rights advocates like Martin Luther King Jr. and NAACP’s Washington director Clarence Mitchell Jr., who worked to end race-based housing patterns that were still in force by the late 1960's; while the bill’s original goal was to extend federal protection to civil rights workers (1964), it was eventually expanded to address racial and religious discrimination in housing (1968)[4], followed by gender (1974), and people with disabilities (1988).

So what does this have to do with our current state of affairs?

The Supreme Court was shaken with the retirement of Conservative Justice Anthony Kennedy on June 21, 2018. Following his vacancy, Judge Brett Kavanaugh was nominated to fill his seat. After several months of turmoil [for victims and advocates] following the allegations of sexual assault by Dr. Christine Blasey-Ford and many others, Kavanaugh was sworn into office as an associate justice to the U.S. Supreme Court on October 6, 2018, with a 50-48 vote. While this may seem like old news, the tidal wave of impact this decision has will continue to keep the waters tumultuous for years and decades to come.

Disparate impact hangs by a legal thread in the Supreme Court; the concern lies in the effects that the current combination of Justices will have on (specifically) discrimination laws. Justice Kennedy was the only conservative justice who voted to preserve ‘the standard’ during a crucial housing case in 2015, stating that the courts should not just pay attention to intentional racism (disparate treatment), but also on the disparate impact as well, and the damage caused by “unconscious prejudices and disguised animus”. [5] The other four conservative justices, however, dissented from the majority opinion in that case, elevating cause for concern as Justice Kavanaugh enters the court. Without Justice Kennedy, and with Kavanaugh’s history of skepticism regarding disparate impact [6], discrimination law could be in real jeopardy.

Until that 2015 case, no Supreme Court ‘majority opinion’ [7] had ever described disparate impact liability as an attempt to address the negative effects of unconscious prejudice. Therefore, the importance of this case was monumental; it reframed “the jurisprudential debate about why we have disparate impact causes of action under Title VII (which prohibits employment discrimination on the basis of race, color, national origin, religion, and sex) or the ADEA (which prohibits discrimination on the basis of age). It recognizes that disparate impact liability might be useful in those cases because unconscious biases might be keeping minorities and women back even in the absence of conscious discriminatory intent. Moreover, while Kennedy’s majority opinion stated that such unconscious prejudices escape ‘easy classification’ as disparate treatment, it does not say that they could never qualify as such. To the contrary, Kennedy puts smoking out unconscious prejudices under the heading of ‘uncovering discriminatory intent’.

This is particularly important because disparate impact is not cognizable under the Constitution’s Equal Protection Clause. Since 1976, the Supreme Court has said that discriminatory intent is required. However, as Justice Samuel Alito pointed out in [this] case, disparate impact can be used as evidence of discriminatory intent, even in constitutional cases. So to the extent that unconscious bias counts as discriminatory intent, the kinds of cases cognizable under the Equal Protection Clause may expand as well.” [8]

So what does it all mean?

Essentially, the concern is that based on their records, Kavanaugh, along with the other four conservative judges, could begin to dismantle current discrimination laws such as the Fair Housing Act by dramatically narrowing the definition of discrimination, starting with disparate impact. Without the belief in and protection of disparate impact, Supreme Court rulings can necessitate that proof of intentional discrimination (disparate treatment) is the only form of court-recognized discrimination.

George Washington University Sociologist Gregory Squires said that with this shift in the Supreme Court, “we [will] probably see less movement in the direction of more diverse communities, and increasing incidents of discrimination," and that "housing providers [will] feel empowered to do things they wouldn't do today with disparate impact." [9]

Additionally, the Trump Administration has demonstrated their resolve to question, even attack ‘the standard’; White House officials are considering the abolishment of the use of disparate impact, which will weaken federal rules against discrimination of women and people of color in areas of housing and education. An internal Justice Department memo directed senior civil rights officials to examine how changes or removals could be made to decades old ‘disparate impact’ regulations. Similar action is currently being taken at both the Education Department and the Department of Housing and Urban Development.[10]

Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law stated that “disparate impact is a bedrock principle. Through the courts, we’ve been able to marshal data and use the disparate-impact doctrine as a robust tool for ferreting out discrimination.” Without the ability to use disparate impact within cases, systemic discrimination on the basis of race, ethnicity, sex, and religion would be left unchecked, pushing our laws and policy back into pre-civil rights era America.

Meckler and Barratt (2019) state that “much — but not all — of the disparate-impact law could be changed by the administration because the concept was incorporated through regulations, which administrations are free to change by following a formal process. A broad-based rewrite of regulations could affect areas such as transportation and environmental law, as well as education and housing. But it would be harder to make changes to voting and employment law, experts say, because the concept of disparate impact is overtly written into the underlying statute, not just the regulations.”

Plainly put, without being able to use disparate impact as a critical tool in discrimination cases, victims will have to be able to prove that their employer/landlord/school/etc intentionally discriminated against them, instead of judges being able to look at the ways in which these social and organizational systems engage in discriminatory practices systemically. Evidence that proves intentional discrimination is often extremely difficult to find; however, even if bias and discrimination is unintentional, organizations such as these should still be held accountable, or our society will never fully break free from the injustice of discrimination. Ajmel Quereshi, senior counsel with the NAACP Legal Defense Fund, said that “most people don’t have access to what’s going on in somebody’s mind. Even if a decision was intentionally discriminatory, it’s going to be very difficult to prove.” [11] 

Without the ability to use disparate impact, many, if not most victims of discrimination won’t be able to successfully and legally fight against the oppressing entity in the court. 

Bottom Line

Thankfully our Democracy is set up so that not one singular branch of government is all-powerful; however, two of the three branches (and half of the third-the Senate) are currently controlled by Trump loyalists, which makes things all the more difficult. But we can fight back; it’s imperative that we become informed people. We cannot fight back against this administration and these injustices without knowledge of what is currently going on. As Martin Luther King Jr. taught us, We The People have power, and it’s up to us to use that power, to use our voices and make our will known to our government.

We cannot revert back to our antiquated, immoral, and discriminatory past. We cannot and will not go silently into the night.


[1] What are disparate impact and disparate treatment? Society of Human Resource Management
[2] Disparate Impact; Legal Dictionary
[3] The Fair Housing Act; U.S. Department of Justice
[4] Fair Housing Act; History
[5] Supreme Court 2015: The court acknowledges unconscious prejudice; Slate
[6] Report on the record of Supreme Court Nominee Brett M. Kavanaugh; Demos
[7] The term ‘opinion’ is used in law to refer to several types of writing done by the Justices. The ‘majority opinion’ is a judicial opinion agreed to by more than half of the members of the court. The Justice who authors the ‘majority opinion’ summarizes the opinion from the bench during a regularly scheduled session of the Court. Supreme Court of the United States
[8] Supreme Court 2015: The court acknowledges unconscious prejudice; Slate
[9] A new Supreme Court is poised to take a chunk out of MLK’s legacy; John Blake
[10] Trump administration considers rollback of anti-discrimination rules; Laura Meckler & Devlin Barrett
[11] Trump administration considers rollback of anti-discrimination rules; Laura Meckler & Devlin Barrett