Disparate Impact

Disparate impact states that, regardless of intent, any adverse impact of a policy or action toward a protected group is discriminatory. In the workplace this might, for example, take the form of a written and oral civil-service exam for firefighters where white applicants pass at twice the rate of black applicants. Even though there may be no intent or discernible discrimination in the exam and it is only testing fitness for service, an exam can be thought to be discriminatory if, based on test results, no blacks and only a few Hispanics would be promoted.

Recently, Jerry Seinfeld was asked why his show doesn't reflect the racial mix found in society at large.

Seinfeld's response was appropriate: "People think [comedy] is the census or something, it's gotta represent the actual pie chart of America. Who cares?" But why couldn't this be the response for any endeavor? Unless somebody is actively trying to exclude a particular race or other protected group or a behavior is clearly biased, why is anybody worried about this at all?

Mona Charen examines how disparate impact is being used by the Obama administration to restrict disciplinary activity in schools.

In the school context, the federal government is now arguing that if a disciplinary rule results in more black, Hispanic, or special-education kids being suspended or otherwise sanctioned, the rule must be suspect. The “Dear Colleague” letter from the DOE and DOJ explains that a disciplinary policy can be unlawful discrimination even if the rule is “neutral on its face . . . and is administered in an evenhanded manner” if it has a “disparate impact” on certain ethnic and other groups.

Under the new dispensation, teachers, principals, and other officials will have to pause before they discipline, say, the fourth black student in a month. “How will this look to the feds?” they’ll ask themselves. Will the student’s family be able to sue us? A variety of solutions to the federally created problem will present themselves. School officials can search out offenses by white and Asian students to make the numbers come out right. Asian students are disciplined at rates far below any other ethnic group. Is this due to pro-Asian bias in our schools, or it because Asians commit many fewer infractions? Oops, there we go into territory forbidden by the federal guidelines.

Equality of outcome, not equality under the law, is important under disparate impact. Behavior and personal responsibility is of no concern. Disparate impact winds up being the antithesis of King's dream. Instead of judging character, practitioners of disparate impact spend all their time judging skin color.

And, of course, it is a system rigged for certain protected groups. As Charen notes, no concern is raised over the disparate impact to males, Asians and others that are not in protected classes. This oversight is not confined to the schoolroom. What if disparate impact were applied to the subject of abortions? As one website notes:

Minority women constitute only about 13% of the female population (age 15-44) in the United States, but they underwent approximately 36% of the abortions.

According to the Alan Guttmacher Institute, black women are more than 5 times as likely as white women to have an abortion.

Why aren't those who are enamored of the disparate impact theory up in arms over this? Certainly the data demonstrate that blacks are over represented among aborted babies. Why doesn't this disparity indicate racist motives among those who agitate on behalf of "choice" and "women's health"?

It seems clear that if pro-lifers wanted to demagogue the issue, they would certainly make this disparity the centerpiece of their opposition to abortion. That they don't speaks to their desire to be fair, decent and not impugn the character of those they disagree with. The lack of concern also seems to question the veracity of the notion of disparate impact since the Obama administration is not pursuing "group justice" due to high black abortion rates.

To channel Seinfeld, apparently people think [fill in the blank] is the census or something and it's gotta represent the actual pie chart of America. Who cares?