Explainer Episode 90 - Disparate Impact and the Future of Equal Opportunity

On April 23, President Trump signed E.O. 14281, Restoring Equality of Opportunity and Meritocracy, declaring that “disparate-impact liability is wholly inconsistent with the Constitution and threatens the commitment to merit and equality of opportunity that forms the foundation of the American Dream.”
In this episode, experts explore the origins, evolution, and controversy surrounding disparate impact law—from Section VII of the Civil Rights Act of 1964, to landmark Supreme Court decisions like Griggs v. Duke Power Co. (1971) and Wards Cove Packing Co., Inc. v. Atonio (1989), to the legislative response in the Civil Rights Act of 1991.
What is disparate impact liability? How has it shaped outcomes in employment, housing, and equal access to opportunity? Is it a justifiable basis for legal liability without evidence of disparate treatment?
Join us for a conversation on one of the most debated legal doctrines in American civil rights history and its role in shaping the future of equality and meritocracy.
Featuring:

Dan Morenoff, Executive Director, American Civil Rights Project and Adjunct Fellow, Manhattan Institute
Gail Heriot, Professor of Law, University of San Diego School of Law
[Moderator] Linda Chavez, Chairman, Center for Equal Opportunity

Additional Reading:
Morenoff, Dan. "Disparate-Impact Liability: Unfounded, Unconstitutional, & Not Long For This World." Fedsoc.org. June 6, 2025. https://fedsoc.org/fedsoc-review/disparate-impact-liability-unfounded-unconstitutional-not-long-for-this-world

Episode Transcript

Speaker 1 (00:02):
Welcome to the Regulatory Transparency Project's fourth Branch podcast series.
All expressions of opinion are those of the speaker.

Speaker 2 (00:18):
Welcome to the Regulatory Transparency Projects for franch podcast. I'm
Sarah Bankson, Deputy Director of RTP. We're honored to host
today's discussion on disparate impact liability and it's my pleasure
to introduce our moderator, Linda Chaves, who serves as chairman
of the Center for Equal Opportunity. To learn more about
today's speakers, I invite you to be their full biographies

(00:40):
at Regproject dot org. Thank you for being with us today, Linda,
the floor is yours.

Speaker 3 (00:46):
Thank you very much. Sarah, and I'm please to introduce
to our audience to very distinguished people on work with
for years and who are both on the Regulatory Transparency
Project Working Group on Race and Sex. Are Dan Meronov,
who is executive director of the American Civil Rights Project.
He's also an adjunct at the Manhattan Institute. And Gail Harriet,

(01:09):
who is professor of law at San Diego University Law
School and she is the chairman of the American Civil
Rights Project. So welcome both of you to the program today.
We're going to have a sort of free wheeling conversation.
In April, President Trump issued one of many of his
executive orders. This one was called Restoring the Equality of

(01:32):
Opportunity and Meritocracy, which is a big job, and we
have gotten quite far astray from that principle in recent years.
It starts out by saying that a bedrock principle of
the United States is that all citizens are treated equally
under the law, and goes on to talk about the

(01:53):
way in which that is no longer the case, and
that the promise of equal opportunity has become a divisive
pursuit of results preordained by irrelevant, immutable characteristics and rather
than individual strengths, effort, and achievement. And it says a

(02:13):
key tool of this movement is disparate impact liability, which
holds that a near insurmountable presumption of unlawful discrimination exists
where there are any differences in outcomes in certain circumstances
among different races, sexes, or similar groups, even if there

(02:34):
is no facially discriminatory policy or practice or discriminatory intent involved,
and even if everyone has an equal opportunity to succeed. Well,
that doesn't sound good. And so I'm going to throw
the first question to Dan and ask you about this
concept of disparate impact liability and where does it come from.

(02:58):
Maybe you can give us a little two minute elevator
speech of the history of dispered impact law, focusing specifically
on a couple of important cases, the Greeks case and
the Wards Cove case.

Speaker 4 (03:11):
Sure, and I'm rather sure that Gail could also do
this at least as well as I can, and may
jump in with details that I've left out with I
can't possibly do it. So the Civil Rights Act passes
in nineteen sixty four. One of its core provisions is

(03:31):
Title seven, which deals with employment law. To oversimplify a
really long and complicated story, the wheels almost came off
the Act in the US Senate when they noticed that
there was a flunky bureaucrat in Illinois who read into
one of the antecedent state statutes. Title seven was based

(03:54):
on desperate impact. And the Senate thought that that was
so looney and so obviously not what they wanted to
do that it nearly killed the whole bill. So Senator
Dirkson saves the day, negotiates a bunch of stuff. Eventually
the Senate passes the statute in the form you know

(04:16):
that it exists from then until nineteen ninety one. It's
basically very clear from the Congressional record at the time
that the Senate only passed this when it was convinced
that this was a disparate treatment statute, that disparate impact
was not in it, and it would not have passed
it if that wasn't the case, so says Congress. Then

(04:36):
the EEOC, also created by Title seven to help administer
the statute, takes over and the EEOC has other ideas
and decides it wants to interpret the statute more broadly
than any other agency was interpreting any provision of Title
seven to cover both intentional discrimination and something else, which

(04:57):
winds up transmuting into what we know as to impact.
Once they start trying to read this into the statute,
you eventually get by nineteen seventy one of the Griggs
case at the Supreme Court, where the Supreme Court defers
to the eeoc's interpretation of the statute and declares that

(05:18):
this was in the statute all along. It is arguably
the most purposivest decision of the modern Supreme Court. It's
also purpose of vism that is very badly done, honing
in on the imaginary intent of Congress to have dealt
not just with intentional discrimination, but with this other thing

(05:41):
that very clearly they did not actually have in mind.
So Griggs comes down and this winds up embedded in
our case law as a result for a good while.
Only in the late eighties do you finally get the
Supreme Court starting to express second thoughts about what they've

(06:03):
done to the statute that comes down in Wards Cove,
most clearly in Wards Cove. Wards Cove is a case
about a cannery in the Northwest that was sued for
having policies that were allegedly both intentionally discriminatory and allegedly
had a disparate impact across racial groups. The district court

(06:24):
dismissed that suit flat out. The Ninth Circuit panel agreed
and threw it out. But the Ninth Circuit then went
on bunk and brought out of the abyss the disparate
impact claims in that case. That is then taken up
to the Supreme Court, where Justice White, who interestingly was

(06:45):
part of the part of the Griggs unanimous court, so
he signed onto both the case that starts this adventure
and the case that starts to express reservations about it.
He writes this a pin and his opinion says, whoa
hold on there? You know now, you this is going
to force people to come in and defend themselves in

(07:07):
really expensive investigations who have no with no evidence that
they ever intended to discriminate against anyone. That seems like
a bad idea. But that's all just rhetoric in the background,
because it wasn't in front of them, whether what was
actually in front of them was what exactly the business
necessity defense was in the burden shifting analysis that Griggs

(07:33):
and McDonald douglas had created from whole cloth. So in
that world, the planeff has to show a prima facia case.
If the planeff shows a prima facia case, then the
defendant at stage two has to show something this thing
the court made up called business necessity, and if they
show that thing, they need get to stage three, where
the planiff gets to say, haha, but.

Speaker 5 (07:54):
That's a pretext. But if that's how this is supposed.

Speaker 4 (07:57):
To roll out, all the wards Cove dealt with was
what exactly are some of the factual predicates you need
to show as part of your prema facia case, and
what is this business necessity defense. It didn't actually deal
with whether disparate impact was in the statute, because that
wasn't that was assumed. So but we get this case

(08:22):
and then the Congress freaks out and winds up passing
the Civil Rights Act of nineteen ninety one. The Civil
Rights Act of nineteen ninety one, in almost every telling,
codifies Griggs, and presumptively that means codifies disparate impact. What
I'm here to argue is that actually, if you read

(08:44):
the Civil Rights Act of nineteen ninety one, it doesn't
actually do those things it overruled Wards Cove. It changes
the definition of business necessity. And that's all so that
like the Substance TIVS section added to the Civil Rights
Act Title seven in nineteen ninety one, it's Section K.

(09:07):
Section K says an unlawful employment practice based in disparate
impact is established if only if that's the important phrase,
only if other things right here about the business necessity defense.
But it doesn't actually amend any of the prohibitory sections

(09:28):
of the Code. It doesn't change the closed set of
statutorily defined actions that are unlawful employment actions. It doesn't
deal with any of them. So instead, all it does
is it makes this piddling change at the edges to
overrule the piddling changes in the Supreme Court had just

(09:51):
made over As a result, the ninety one Act is
dramatically overstated, and I would argue no common ever passed,
no president ever signed, no Code section ever reflected that
anything that lacks an intent to discriminate has ever actually
been an unlawful employment action under Title seven. You might

(10:14):
ask questions here, like why would anyone care about this
fifty years after the fact? We can talk about all that.
I think the Supreme Court has expressly, maybe not intentionally
invited such litigation both a year ago and on Friday
last week, and that having done so, if we pay
attention to the Court's precedents on presidents, Griggs is not

(10:38):
just wrong, it's the kind of wrong the Court actually
is willing to reverse.

Speaker 3 (10:44):
That was a little more than two minutes, but an
excellent sort of summary. And I'm going to give Gail
a chance in a minute to get into herent interpretation
of some of that history. And I will point to
our listeners to an article that you have a pup
on the Federal of Society Review, Volume twenty six. It's

(11:04):
called disparate impact liability, unfounded, unconstitutional, and not long for
this world. But before I let let you do that, Gail,
let me offer something that you once offered, and tell
me if I'm right about this. I think he once
offered to write a ten thousand dollars check to anyone

(11:24):
who could show a job qualification that didn't have a
disparate impact on one group or another.

Speaker 5 (11:31):
Do I have that right? I love that right.

Speaker 3 (11:33):
Okay, So this is, you know, whenever we get into
the subject of disparate impact, if you're not a lawyer,
if you're not deeply involved in civil rights, a lot
of people just sort of their eyes glaze over because
this is, you know, very nitty gritty stuff and interpreting
each and every course of history in this convoluted idea.

Speaker 5 (11:56):
It takes a while.

Speaker 3 (11:57):
And you have to be very familiar with it. But
the whole question about what it means. What is disparate impact?
You know, what, as you say, what tests that any
employee gives that doesn't set up some qualification which won't
have an impact on one group or another. So explain

(12:17):
that a little bit more to the layman to a
layb woman.

Speaker 5 (12:21):
You know, let me talk about what we mean when
we say that something has a disparate impact on a
particular group. I know, as you were saying, Linda, and
I've said in the past a zillion times and just
about everything, well not just about I will go further
everything everything. I can't think of anything that doesn't have
a disparate impact on some group that is protected under

(12:45):
Title seven. I remember, that's a lot of groups that
we're talking about. Every race, both sexes, every religion. Think
how many religions there are out there, every national origin,
group or ethnicity is we might be caught today. That's
you know, hundreds of different groups are protected. And when

(13:06):
we say some a particular job qualification may have a
disparate impact on somebody, we'll think about it. Men on
average are stronger than women. That doesn't mean that every
man is stronger than every woman, but on average, men
are stronger than women. On average, women have smaller hands
than men, and that makes them better at fine handiwork.

(13:28):
So if ever an employer says I want somebody who's
good at fine handiwork, it's going to give women as
a group an advantage if you think about it. Let's see,
Hispanic men are more likely to have the combination of
upper body strength but smaller size on average. That makes

(13:50):
them more likely to be championship jockeys. You know, this
could go on forever. South Asians are more likely to
have experience in that the motel industry than others, for
reasons that I have no idea about. I don't know
how that happened, but it did happen. I do know
how another one happened, and it's kind of interesting, you know.

(14:12):
I don't know if you've ever noticed, but at manicure parlors,
Vietnamese Americans are more likely to have experienced in the
manicure industry. And I know how that happened. Right after
the fall of Saigon in nineteen seventy five, there were
a lot of Vietnamese people being brought to the United

(14:33):
States and they were put in refugee camps, and there
was one here in California, and Ronald Reagan had just
gotten through being governor at that point, and he invited
some of his movie star friends to come to the
refugee camps to cheer people up. And there were a
lot of young women who didn't have any particular job skills,

(14:55):
they couldn't speak English. Tippy Hedrin, the star of Alfred
the Birds, came to their refugee camp. And for people
who are a little younger who might not remember Tippy Hendrid, Uh,
she is Dakota Johnson's grandmother, us another but she was
a movie star at the time, and some of the

(15:16):
young women admired her manicure, and light bulb goes on
over her head. She realizes, here's a way to get
jobs for these young women. The training to be a
manicurist takes only a couple of weeks, so she shelled
out the money to send about a dozen of these
young women to manage your school. They got jobs, they

(15:37):
didn't need to speak English for that, and they would
save their money. They paid for their sisters, their cousins,
and over a very short period of time, that was
enough for Vietnamese American usually young women uh to dominate
the industry. And some of those women are probably retiring
now because they're they're they're in my age group, and

(15:58):
you know, it's gone on for a couple of generations.
Some of them, I'm sure went on to bigger and
better things. But to this day, if you're looking to
hire somebody with experience in the medicure industry, Vietnamese Americans
are going to have a leg up on that. And
what we mean by that is not not that the
person doing the hiring cares about the ethnicity, the religion,

(16:19):
the race, the sex of the person they're hiring. It
just so happens that they're going to be more Vietnamese
Americans who have that experience than there are people from
other ethnicities. And that's the weird part about the Griggs decision.
It doesn't it doesn't matter whether the employer is trying
to discriminate. All that matters is the particular job qualification

(16:42):
is such that one group is going to have, you know,
somewhat more people percent percentage wise than another group. And
guess what. That's always going to be the key.

Speaker 3 (16:53):
And in fact, Thomas Hole has written many books about this,
in the way in which certain ethnicities seem to congregate
into certain professions. And this is not just a phenomenon
in the United States, it's a worldwide phenomena. There are
concentrations of Chinese, for example, in the laundry industry, not
just here in the United States, but around the world

(17:16):
there are others, you know, who have been involved in
electronics or people who've gotten into the computer industry, et cetera.
And this is not so if you're looking for somebody
with those qualifications, it's going to have an impact. But
I want to talk about something else. You know, we're
talking about it all in the context of Title seven.

(17:39):
Are there other statutes in which disparate impact has had
a played a role? The concept of disparate impact has
played a role. I'm thinking of the housing area, for example, Dan,
you want to go first, and then maybe gible.

Speaker 4 (17:57):
So housing is actually an interesting way in that the
Supreme Court in the relatively recent past actually did read
the Fair Housing Act to be a disparate impact statute,
which puts it in a different bucket. Well, I mean,
like I would imagine, I would describe this as they're
having three different buckets that are available. Here. One bucket

(18:18):
the Fair Housing Act, the Supreme Court relatively recently said, yes,
that is a disparate impact statute. You've got another bucket
of the Fourteenth Amendment Equal Protection Clause, which isn't a statute,
but you know it's also there an enactment wherever we
want to say the constitutional constraint on federal power that

(18:40):
parallels the equal Protection Clause, and the justices don't agree
among themselves, but at least seven of them agree, it's there.
Give the two of those you have Title six, Title nine.
These are statutes that everyone statutes or enactments that everyone
agrees are entirely about intentional discrimination and disparate impact is

(19:03):
not enough to establish liability without proving disparate treatment or
an intention an intent to discriminate. So that's one bucket.
Fair Housing Act is another bucket, and somewhere in between
is where I would say Title seven falls.

Speaker 3 (19:21):
But so Gail, let me pick up on that with you,
because I can think in the housing area, if you're
talking about access to loans and being able to apply
to get a loan for a house, your credit history
may be relevant. A bank may really want to know

(19:41):
whether or not you're going to pay back that loan,
and so your credit score might be important for that bank.
And as long as it's applied equally to all people
who who apply for the loan, one would think that
would be, you know, absolutely appropriate. But I've certainly heard
it argued is oh, no, can't we can't talk about

(20:02):
credit history, or even in some other areas credit history
can be important. For example, in certain jobs if somebody
is you know, not good with with their own finances,
do you really want them to be the accountant and
you're in your office or even operating a cash register
if they have if they have problems with their credit,
you know, and they have access to a cash register,

(20:24):
they you know, might might be more tempted. But you know,
isn't that also the case that you can have what
are clearly important criteria, but they get excluded because they
have a disparate impact on someone else.

Speaker 5 (20:41):
Yeah, it's interesting, and that like, if we really did
not allow banks to consider credit history, that would be
the end of the world actually, because the bank the
banks would fail. So there are other statutes that cover
these sorts of issues, and they haven't to the point
where you can't consider credit history in making a loan

(21:04):
because again.

Speaker 3 (21:05):
Like, but what about what about applying to live in
an apartment? What about what about you know, public housing?

Speaker 5 (21:12):
The case is Texas Department of of Housing and Community
Affairs versus Inclusive Communities Project And it was just a
few years ago. Uh, and they in a five to
four decision five four decision that I regret very much,
and that the Fair Housing Act does indeed include an
element of disparate impact. And so things like credit history

(21:35):
there obviously can matter a great deal and yet you
know it's going to have a disparate impact. We don't
know yet whether or not a court would say that
there's business necessity for considering credit history for determining who
to give a to give an apartment to. My guess
is that that they would at least a certain extent.

(21:58):
But there are all sorts of other things that have
a disparate impact, like criminal record. Now can you can
you consider criminal record and determining you know, who to
lease the apartment to, because that will have a disparate impact.
It will also have a disparate impact. For example, you know,
do you own a pet? It's actually true that like,

(22:21):
whites are more likely to own own dogs than than
than members of other races for cultural reasons that I
know I couldn't begin to understand, but it's true. Uh
So if someone says no dogs, that's going to have
a disparate impact on whites. So many things fall into
that category. So we've opened up for now for for

(22:42):
for you know, apartment lease and and such, that question
of okay, you know, if something has a disparate impact,
does that mean that you can't use it? And if
it does, that's you know, that means that they just
have to give out apartments randomly, I guess, because everything
will have a disparate impact.

Speaker 3 (22:59):
And I'm thinking now, you know of the question of say,
public housing, so access to subsidized housing or public housing
of some sort. Not being able to check criminal record
is going to have an impact on the people who
live in that housing. And if it's excluded, who gets
hurt by that? If you basically say you cannot consider

(23:23):
the factor of whether or not you've served in prison,
isn't it really the other people who live in the
housing unit? And aren't they more likely to be also
black and brown and poor than others? So who are
helping by this?

Speaker 5 (23:39):
Yeah, in fairness, you know, they haven't quite gotten so
far as to say you can't consider it at all.
It's actually the EEOC and the Employment Area where they've
gone the furthest on this. And they had a guidance
that they issued in twenty twelve, and they knew they
couldn't say you can never consider criminal record, but they
sort of danced around it and said, Okay, you know

(24:00):
this has a disparate impact, and therefore you have to
be really careful. You know, you have to first determine
without asking whether someone has a criminal background. You know,
you should decide who you want to hire, and then
and then you go to that person and you ask them,
can we now check to see whether you have a
criminal background? And if it turns out they do and

(24:23):
you don't want to hire them, then you've like sent
this giant message to them. The reason that you didn't
get hired had to be only that you had a
criminal record. And they never came out and said you
can never reject someone for that. But they went pretty
dorms bought. They said, even if there's a state law
that says, for example, you know, for a particular job

(24:45):
category looking in a daycare center, for example, lots of
stage for a daycare center, you have someone who has
been convicted of a felony, or you can someone who
has been convicted of molesting children or or oh, and
they say the se said, no, that's that's that's overruled
by bye by title seven uh and the great case uh,

(25:05):
and you have to instead show business necessity. Well, you know,
any employer is going to panic at this. I have
spoken uh to people who work in the the security
guard in this tree. These are companies that higher people
then give them out to other companies, you know, to

(25:27):
to to be security guards. So if you need a
security guard for your bakery, you call this company and say,
you know, can you have a security guard that works
from from from six in the evening until till you know,
seven in the morning, uh, to make sure that nothing
happens here. And I would have thought that it would
be obvious that security guards need to have uh, you know,

(25:47):
clean criminal records. That that's one of those jobs where
you want to make sure the person is not a
criminal themselves. And yet, and yet the CEOC went nuts
and went after more than one of these companies, and
you know, insisted on investigating their entire method of hiring.

(26:07):
And you know, of course other companies see that and
they they look at the guidance and the guidance is incomprehensible.
You know, you don't know what to do if you're
the employer and you look at this twenty twelve guidance.
All you know is, boy, I better not reject very
many people with a criminal record or I'm going to
be in trouble. And the security guard companies now know,

(26:29):
you know, even we the security guard companies have to
hire people who have felony records. And really, the idea
if you look at Title seven itself, which just says
you can't discriminate on the basis of race, color, religion, sex,
or national origin. The idea that somehow you can find
in this the complicated twenty twelve guidance, it's just I

(26:53):
will say.

Speaker 3 (26:54):
I will add Gail that I once served on the
board of directors of a large facility services company that
included at the time security. And one of the things
that happens is if you can ask those questions and
then something happens on the job, guess who gets sued

(27:14):
these company that provided the security agents. And so you know,
employers are very much in a spot here, Dan, I
think you wanted to add something away in here.

Speaker 4 (27:26):
I was just going to say that, and I mentioned
this in the article. There's actually a suit that the
sec SEC, the EEOC brought last year against Sheets. Sheets
is like Quickie mart station chain up and down the
East Coast based on entirely on their on their screening

(27:48):
for criminal records in their hiring process, and they know
they denied that it was discriminatory, and this was being litigated.
It was actually it's been in court lead last week
that the EEOC actually moved to have the case dismissed
in that one of the individuals who had originally complained
to them is trying to intervene to keep the case going.

(28:09):
So it's an interesting thing to see how this pans out.
But like you were talking about the President's order, this
is one of the places it's actually having an effect
in that having instructed agencies to deprioritize enforcement efforts employing
a disparate impact theory has actually pointed towards wrapping up

(28:33):
a piece of ligation against an employer doing something I
think almost anyone would have said was reasonable, but which,
by the way, even the EEOC said, had no intent
to discriminate.

Speaker 5 (28:43):
You know, let's talk about that.

Speaker 3 (28:45):
I'm just gonna interject and you can weigh into a
gale on this, but I think Dan Reyes is an
interesting point. So, Okay, there's an executive boarder that's passed,
are not passed, but an executive board at that signed
by the president, and it's going to have impact in
the executive branch is this president is in office, What, though,
is going to happen when this administration goes away. Is

(29:10):
an executive order enough to take care of this issue?
Or what do we really need?

Speaker 5 (29:15):
Gail Well on that. You know, an executive order can
be withdrawn at a drop of a hat. I mean,
it's very easy. The next president can withdraw every single
executive order from every single president if that's what that
president wants to do. The thing I wanted to add
about about the criminal background stuff is that, weirdly, it
actually causes actual race discrimination. You know, there is there

(29:39):
is some empirical evidence what happens when employers are told
they can't consider the criminal background of the applicants, They
can't even ask, they won't even know, you know, which
candidates have that. What happens is that they fall back
on actual race and sex discrimination. You know, if you
hire an is female, they're less likely to have a

(30:01):
felony record than if you hire a black male, or
for that matter, a white male or any other male.
Right And there's some evidence that that has actually happened,
and that is that is that's a really sad story.
The EEOC, you know, overreaches in this way. Well okay,

(30:23):
so instead of having they get the opposite, they get
actual discrimination.

Speaker 3 (30:29):
So you know, you're absolutely right. Then an executive order
can be withdrawn by the sitting president or by the
next president. You can essentially withdraw executive orders by previous presidents.
And this president withdrew the eleven two four six, which
was the executive order that mandated affirmative action. And you know,

(30:53):
and that has been around for I don't know, almost
fifty years or so, maybe even more. And so yeah,
they it doesn't have the same weight as a Supreme
Court precedent or even more importantly, legislation. So is there
something that needs to be considered in this arena? Is

(31:13):
there more legislation?

Speaker 5 (31:14):
Dan?

Speaker 3 (31:15):
I mean, you've written this article and talked a lot
about the history of so it's law, and I'm old
enough to remember that history firsthand for some of it
at least, And you're right, I mean, the people who
passed the nineteen sixty four Civil Rights Act had no
intention whatsoever to mandate equal results. And in fact, the

(31:38):
famous it may even be apocryphal, but the famous quote
from Hubert H. Humphrey was, you know, I'll eat every
page of the bill if it ends up requiring racial
preference in order to get equal results. But is there
perhaps an avenue for Congress to do something in this
arena that can make this clearer?

Speaker 4 (32:01):
So, I mean, I think the first thing to say
is yes, of course there are things that Congress could do.
If anyone wants to take a bet on whether Congress
will do them, I think you will find receptive odds
most places. It is certainly possible, and I would hope
that they will. But you know, if there's any senator listening,

(32:21):
I'd be happy to give you some suggestions. Shy of that.
The law is actually already clear, and I think we
do really need to have litigation in the works to
push this through, to give the Supreme Court the chance
to actually rule on the issue. And I mean, I
see at least three ways that you could get this

(32:42):
into court. One would be we started this journey by
the EEOC issuing a guidance document in an area where
it has no regulatory authority, can't and doesn't issue regulations,
so it doesn't have to go through notice and comment,
so to unwind what they started, the cleanest, easiest way
would be for them to issue a new guidance document

(33:04):
correcting their erroneous interpretation of the law. Now they do that,
I'm relatively certain that they get sued by some plainiff's lawyer,
probably in Massachusetts, maybe Rhode Island, maybe Hawaii. I guess
I should throw in Maryland too, you know, but there
will be someone who sues them about that to enjoin
them from going forward with their new guidance. There might

(33:27):
be such a plaintiff s lawyer working on that suit
right now, just to challenge the president's executive order. I
don't want to mouth off about whether any such effort
would be ripe, but at least after they issued new guidance,
I think there's a pretty there'd be pretty strong evidence
that it would be proper, given that the EEOC has

(33:51):
been sued challenging its guidance documents in the recent past,
including the last four years about in the aftermath of Bostock,
So we know that that could happen, and you know.

Speaker 5 (34:06):
That would be one way.

Speaker 4 (34:08):
Another way would be someone in a parallel position to
Sheets could simply argue as a defense in addition to
whatever else they're arguing in the suit. There's no such
thing as this claim now given Griggs. You make that
argument as a defendant, you're gonna lose at a district court,
and you're gonna lose it a court of appeals almost

(34:29):
certainly as well.

Speaker 5 (34:31):
But you'd then be able.

Speaker 4 (34:33):
To try to convince the Supreme Court to take the
case on certain and deal with the issue. I can
think of many reasons that a defendant would not find
that an appealing option, but it's possible. And the third
way that I've come up with that someone could get
this into court would be that if one felt that

(34:53):
this was an important question and one, we're an employer
subject to Title seven as a matter of federal law,
any time that you could be sued, you don't have
to wait to be sued. You can, in fact go
into court preemptively and seek a declaratory judgment of your
rights on the same issue. So any such plaintiff could

(35:18):
sue the EEOC if they're a private plainiff, or the
Department of Justice if they're a public one, and simply
say something like, as an example, let's say the county
that runs a jail has an opinion that it would
like to screen its potential hires for their criminal records.

(35:39):
They might have very good reasons to do that, and
they might have every intention of establishing a facially neutral
policy that they would even handedly apply. They do not
care about the race or sex of the people. They
just don't want people with a history of say, violent crime,
as they're jailers. They could sue DOJ They could bring

(36:01):
that suit right now.

Speaker 5 (36:03):
It would be it would be ripe.

Speaker 4 (36:05):
They could bring it and force the courts to rule
on this issue on whether in fact. And you know
I teased this a moment ago. There have been two
decisions now in the last thirteen months by the Supreme Court,
maybe a little bit more, maybe fifteen months, both titles
seven cases dealing with the same language of the same

(36:28):
statute that Griggs interpreted in ways that are irreconcilable with it.
So the Supreme Court seems to be inviting us to
bring those suits. And I mean, I for one, would
like to take them up on the invitation.

Speaker 5 (36:42):
Gail, you want to weigh in. I'm less optimistic than
Daniels about you know, there's a lot going on here.
Justice Scalia in the case of Richie versus d Stefano
has concurrence basically invited a lawsuit that would be based

(37:05):
on a constitutional argument that disparate impact liability is simply unconstitutional.
The notion here is that when when you're telling an
employer you know you can't have a job qualification if
it works against a particular group, you're discriminating in favor
of people of that group. Essentially, it's race discrimination to

(37:28):
have a disparate impact liability theory. And nobody ever really
took him up on that. I mean, it's been years
since the Ricci case, and the truth is that conservative
public interest law firms are spread pretty thin. There aren't
enough enough people working on these issues, and never, to

(37:49):
my knowledge, has there been a case that really made
made the argument clearly, you know, Dan is coming in
and saying, well, you know, you shouldn't have to the
constitutional argument itself, that in fact, you know, everybody has
been assuming that the nineteen ninety one Act has adopted

(38:10):
disparate impact liability, but it really it really didn't. It
just sort of acknowledged that it was out there and
tried to limit it. And I think that's that's true,
that what the nineteen ninety one Act does. Nineteen ninety
one does a whole bunch of things. It's like a
laundry list, but this is one of them. And it

(38:32):
says you can have a disparute impact case only if
it fits the following pattern and it then, you know,
gives some detail. But that only if is kind of interesting.
You know, it's not saying you can have a disparate
impact liability case. It's just saying if you do this,
then you know, maybe maybe you know, only if you

(38:52):
do this much, but you know, you could argue therefore
that it doesn't really adopt disparate impact liability. My prediction
is that if it ever got in front of a court,
the court would say, even a conservative court would say,
Congress acquiesced in the Greeks decision by using that language.
When I start liking Dan's argument is when it's combined,

(39:16):
when you combine it with the doctrine of constitutional avoidance,
we can make a pretty good constitutional argument that disparate
impact liability is unconstitutional, that it's just a very complicated
way of discriminating in favor of particular groups. Well, if

(39:39):
you can get that argument in front of the front
of the Supreme Court, and it's a kind of argument
that that's I think it's right, but it's also complicated,
and Supreme Court is not always the bravest, you know,
group of nine people in the world. It took them
forever to say the discrimination, clear discriminat on the basis

(40:00):
of race and college admissions is unconstitutional. It took him forever.
You know, we had the Baky case in nineteen seventy eight,
we had the Grutter case in two thousand and three,
we had the pair of Fisher cases in the twenty tens,
and then finally, finally a case for students for Fear

(40:25):
admissions against Harvard. They finally said, hey, you know, this
is race discrimination and we're probably not supposed to do.
That took him forever. I fear it would take them
a long time to say, hey, just REDI back liability.
That's not so great either. That's also unconstitutional. But what
you can do is say, look, you know, this is
a this is a plausible argument under the doctrine of

(40:45):
constitutional avoidance. You should like avoid that if you can,
Why don't you instead look back at the ninety one
Act and agree with us that they didn't really adopt
it in the first place, and I know that's plausible too.
And then if you get back to the basic statutory
interpretation issue, we win that with hands down. I mean,

(41:08):
it's just I will bet every every ounce of blood
in my body that Congress, the eighty eighth Congress in
nineteen sixty four, not only did not intend disparate impact liability.
They knocked themselves silly to avoid the possibility that the
future would would would would include disparate impact liability when

(41:30):
they did everything possible to say no, no, no, no, no,
that's not what we mean. And yet somehow we went
down the wrong road. But yeah, you know, it's a
Dan's argument is plausible that the nineteen ninety one Act
did not adopt disparate impact liability. It's plausible just on
his face. I mean, they didn't. They said, if, if only,

(41:53):
if you have the following things, can you bring a
disparate impact liability. But when you combine it with stitutional avoidance,
that gives it a little bit more strength, and I
start having more confidence in it. You know, I start
from the standpoint that just because you're right, that doesn't
mean that you will win a Supreme Court case and
you know, we need to build this case with the

(42:17):
constitutional avoidance side to it. And I think being serious
about the constitutional argument as Scalia was. You know, Scalia said, look,
you know, we need to consider whether this is unconstitutional.
And I can't remember exactly the year that the RICCI
case came before him, but it was like what two
thousand and six or so, it's time, I mean, it

(42:38):
is time. Let's let's let's litigate this.

Speaker 3 (42:41):
Let me let me throw out to both of you,
because I think this is a sort of overarching issue
finding the right plaintiff. And Dan you mentioned, you know, sheets,
and why would you you know, as you know, again
having served on corporate boards, you don't want to, you know,
open yourself up to huge settlements and huge fines, huge

(43:04):
judgments against you for having discriminated. So it's very hard
to find somebody. And Gale to your point, I mean,
I really truly believe that the case, certainly at Harvard
was greatly helped because you had another minority group who
was being harmed. That finding that Asian students in particular

(43:27):
were being disadvantage by giving preferences to black and Hispanic
students was a big part in at least getting people
to understand that this idea, this concept isn't quite what
people think is. It isn't about fairness and justice. It
is about giving preference to someone. And the whole point

(43:50):
of the Civil Rights Act was supposed to be you
can't give preference based on skin color, based on religion, well,
based on sex. That the whole point is that everybody
is supposed to be equal before the laws. So how
is it you go about finding the right plaintiff in
a disparate impact case?

Speaker 4 (44:10):
Dan, Yeah, I don't think for other reasons you're saying
that the answer is likely to be find someone who
has been sued in a disparate impact action. They have
every incentive to get out as quickly and cheaply as possible.
I think the answer has to be to find someone
who is an employer with more than fifteen employees covered

(44:32):
by the statute, who thinks that this is important and
is willing to file that deck action, or for the
EEOC to clean up its own house. The EEOC can
do a lot of things, it has a lot of
statutory authority, but I think one of those two has
to happen. If you bring the declaratory judgment action. The

(44:53):
nice part about that is you can seek it for
the express purpose of saying, I want to do the
thing which I have a reason to believe might open
me to liability, and I want to find out now
before I do it, so that I'm not risking those
ruinous finds, the penalties, the intention, all of that. Get

(45:15):
it out now on the front end, so that you're
not exposed to the downside risk of that litigation.

Speaker 3 (45:25):
Kale, do you have a different thought or anything to add.

Speaker 5 (45:28):
I just want to add what every public interest lawyer knows,
and that is getting the right planeiff is not only
hugely important, it's really hard. It's really hard. And that's
you know, when people say, why haven't you challenged this?
You know, law, why haven't you done this? It's I
need a plaineiff, and you know, to be fair. That's

(45:52):
the way our legal system works for a good reason
that courts have the authority to decide real dispute. They
do not have the authority to decide issues in the abstract,
and if they did, we'd be worse off. It would
mean that unelected judges are deciding everything right. And so

(46:13):
the requirement that you have people that really have skin
in the game, that really have an issue that they
need resolve for a reason, and not just Hey, it's
some law professor that wants to know what the law
law should be. It wants to argue that it should
be this, or that it's important. So, you know, we
have to live with the fact that it's hard to

(46:34):
find the right plaintiff, but it has to be.

Speaker 3 (46:36):
Done well as somebody who's spent many years talking about
disparate impact theory and the role that the plays and
again having people's eyes glaze over when I would do
that or write about it. I think you too, have
done an excellent job today really talking about it in

(46:56):
a way that is COMPREHENSI well, not just to our
listeners who happen to be attorneys, but also people who
are just simply interested in civil rights law. And I'd
like to sort of give you each a minute or
so to talk about where you see this going. Do
you think that the executive order is going to have
real impact? And we've already said that we'd love to

(47:20):
find a plaintiff somewhere who can test this more thoroughly
in court, But what role do you think this executive
order is going to happen. It certainly got this topic
on the screens of many people.

Speaker 5 (47:35):
But what role Dan, Yeah.

Speaker 4 (47:37):
So it's inherently meaningful when the president orders the entire
executive branch to do or not to do something. And
that's particularly important here because there are so many places
like Title six and Title nine where to the extent
that disparate impact liability is possible. It's not cause anyone

(48:00):
thinks the statute says it. It's because people claim that
the regulations say it. Now. I think part of this
order also instructed agencies to rewrite their regulations.

Speaker 5 (48:10):
They haven't done that yet.

Speaker 4 (48:12):
I assume that they're working on that, and when they do,
I think that will be inherently meaningful as well. But
in the meantime, ever since twenty eleven and the Sandoval opinion,
we've known individuals, just people do not have standing to
enforce federal regulations. Only agencies do so. For Title six,
for Title nine, for all the places that regulations are.

(48:34):
The only way that this could be an issue. The
president saying don't do it means it doesn't happen at all,
and that's really meaningful for the duration of the presidency.

Speaker 5 (48:43):
And that order.

Speaker 4 (48:46):
For the other areas. There are a lot of left
wing civil rights lawyers currently telling people, often in group
signed letters, don't worry about it, nothing changed, we can
just bring those lawsuits our cells. Yeah, Gail, particularly for
Title seven and the Fair Housing Act, they can and

(49:10):
does not make someone. I hope they do, because that'll
at least, you know, tee up situations where the EEOC
can intervene in order to participate and say, yeah, that's
not a thing, but they would have to do Gale.

Speaker 5 (49:21):
One interesting aspect of the Civil Rights Act of nineteen
ninety one that puts a damper on private parties bringing
disparate impact lawsuits is that you can get much more
in the way of damages if you bring it as
an intentional discrimination case. And so what's been happening over
the last thirty years or so is that, you know,

(49:43):
with regard to employment discrimination, the EEOC is the one
that does, you know, the disparate impact cases and private
private litigants tend to bring intentional discrimination cases unless they
know they can't possibly put an intentional discrimination in which
case they'll bring a disparate impact liability case, but it's
not their preferred way of doing it. So I think

(50:07):
that aspect of the ninety one Act is useful right now,
and that's a good thing. So I think that the
Trump's executive Order is going to cover most of the
cases that would have been brought. They mostly would have
been brought by by governmental bodies like the EEOC. But
it is still true, as Dan says, that a private

(50:29):
litigant can bring a desperate impact liability case and they
probably will be doing more of those now.

Speaker 2 (50:36):
You know.

Speaker 5 (50:36):
But they can't get punitive damages, they can't get emotional
distress damages, so it's not their preference. I think we
have a little bit of a breather here where we
can start figuring out how we're going to do exactly
the sorts of things that Dan was talking about. How
are we going to actually get this issue before the

(50:58):
Supreme Court? And I look forward to working on that
and I hope we can come up with some good
plaintiffs for that work. I think it's important. I mean,
this is a fundamental issue. We are not talking about
some sort of side issue. We're talking about something that's
hugely important. I think about who we are as Americans

(51:19):
that we favor equal protection under the laws. We favor
laws that prevent discrimination, that allow people equal opportunity, but
we don't. We don't want equal outcomes. You know. The
only way to get equal outcomes is to have a

(51:39):
legal regime that basically prevents people from being successful. You know,
one of the things that's always bothered me about the
rhetoric surrounding diversity is that, like, we talk about how
wonderful diversity is, and then we have a fit when
it turns out that groups really are different as they

(52:00):
are you know, individuals. You know, there are all sorts
of different individuals. But yeah, every group is a little different,
you know, from from from from another group. Uh, And
they're going to have, you know, people of various talents
within that group, but the average is going to be
a little different for each group on each each thing.
And you know, that should be a great thing. We

(52:21):
shouldn't expect that that basketball players will look like America
in the sense that every ethnic and racial group is
represented and exactly the proportions that that that they are
in the population. Nor should we expect that, you know,
computer scientists will look like America. The truth is that

(52:43):
it's more common for Asian Americans to get PhDs in
computer science than it is for any other group.

Speaker 4 (52:50):
So what right like I mean like you could do
this with anything, like.

Speaker 3 (52:54):
Anything that's right, any any any particular profession you can
do this with. And and you know, one of my
interests throughout my very long career in civil rights is that,
you know, people who have promoted these ideas often think
that they are helping disadvantage people, helping people of color,
et cetera. As somebody who has been around and seeing

(53:18):
that firsthand, it often ends up harming the very people
that it is supposed to benefit. So I think this
has been a very good discussion. I plugged Dan's paper. Gail,
do you have something you've written in this area you'd
like to refer to that people can look up?

Speaker 5 (53:36):
Well, I did an article a couple of years ago,
but I forget the title now. I think it's something like,
you know, disparate impact liability.

Speaker 3 (53:46):
You know, is where did it appear? Where was it's.

Speaker 5 (53:51):
It's in the New York University Journal of Law and Liberty.
But if you just google Gail Harriet disparate impact, you'll
come up.

Speaker 3 (54:00):
Actually get I have in fact on that, And there's
a lot of things that you came up with when
you Google Gayla Harriet and disparate impact.

Speaker 5 (54:08):
Thank you both so much.

Speaker 3 (54:10):
This has been a great discussion and I look forward
to seeing you again soon.

Speaker 2 (54:15):
Well.

Speaker 5 (54:15):
Thanks Linda.

Speaker 2 (54:16):
On path of the Federal Society, I want to thank
our speakers for sharing your time and expertise with us today,
and to our audience, thank you for tuning in.

Speaker 1 (54:31):
On behalf of the Federal Society's Regulatory Transparency Project. Thanks
for tuning in to the Fourth Branch podcast to catch
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Speaker 2 (54:58):
This has been a fed Sock audio production.