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Welcome to The Logoff. President Donald Trump signed an executive order that takes aim at a longtime core principle of civil rights law known as disparate impact. And though he can’t get rid of it entirely on his own, he may be hoping conservative justices on the Supreme Court will.
What is disparate impact? It’s the legal concept that certain practices can violate federal civil rights law because they affect certain demographics differently — even if no explicit or intentional discrimination is proven.
For instance: Everyone knows it would be illegal for an employer to say they won’t hire people of a certain race. But what if an employer screens out applicants who’d previously been arrested? Under disparate impact analysis, if doing that ends up disproportionately hurting applicants of one demographic, it could be an illegal violation of civil rights law.
Disparate impact is a cornerstone of civil rights enforcement, but activists on the right have pushed back against it, arguing progressives have taken the idea too far, and that standards that affect different demographics differently should not necessarily be presumed illegal.
What did Trump do? Trump’s order declares it US policy “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.” It starts the rollback of some regulations, while deprioritizing the enforcement of others.
Pending federal actions that rely on disparate impact analysis, such as civil rights lawsuits or investigations, must be assessed for compliance with this order, Trump says. He also broaches the possibility that state laws or policies relying on disparate impact could be illegal.
Can he do this? Trump can try to roll back enforcement, but disparate impact was codified in a 1971 Supreme Court ruling that he can’t get rid of on his own. But activists on the right are hoping that the Court’s conservative majority is ready to throw out that long-held precedent.
And with that, it’s time to log off…
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