With the Trump Executive Order Blitzkrieg, it was easy to miss #14281, April 23rd’s “Restoring Equality of Opportunity and Meritocracy,” that stripped “disparate-impact liability” from federal Department of Justice enforcement guidelines. According to Trump or his ghost writer, the principle of equality under law “guarantees equality of opportunity, not equal outcomes,” encouraging “meritocracy and a colorblind society, not race- or sex-based favoritism.” Of course meritocracy, whatever it means, is not mentioned in the United States Constitution or codified federal law, but Trump and his crack legal team may not be aware of that. It isn’t even defined in Executive Order #14281.
What is codified in Title VI and VII of Civil Rights Act of 1964 is that government agencies and employers are prohibited from “discrimination based on race, color, religion, sex, or national origin.” Congress provided for class action suits for enforcement of provisions of the Act. Prior to Trump, federal agencies, including the Justice Department, interpreted this to mean that if a law or practice that appeared to be race neutral as written disproportionately impacted on members of a group identified by race, color, or national origin, it was incumbent on the government agency or employer to demonstrate the practice was job related and its goals could not be achieved by any other means
This was done to prevent states, localities, and employers from using subterfuge to deny rights and opportunities to members of minority groups. For example, you could not bar someone from being a bus driver with a height requirement if they were capable of driving the bus, you could not bar someone from teaching because they had an accent if they could be clearly understood by students, devises used to discriminate against qualified women and immigrants, and you could not deny someone a manual labor job because they didn’t graduate from high school. You can have minimum requirements for a position, but you cannot have a ranked hierarchy unless you can demonstrate that the test is job related and that someone with a higher score will be able to perform the job more effectively. The tallest bus driver might not be the best for the job, a high school diploma doesn’t ensure someone’s physical ability to do heavy work, and person with a higher score on a standardized multiple choice test might not be the better teacher.
This interpretation of the Civil Rights Act and the “disparate-impact liability” standard were confirmed as constitutional by the Supreme Court in its 1971 Griggs v. Duke Power Co. decision. Prior to passage of the Civil Rights Act, the Duke Power Company was notorious for its racially discriminatory practices. After the Civil Rights Act became law, the company used the lack of a high school diploma to limit Black workers to lower paying job categories, although there was no evidence that a high school diploma was needed to perform assignments in the higher paying categories.
A lower court ruled that the high school diploma requirement impacted on all groups so it was not discriminatory, but the Supreme Court overturned its ruling. Chief Justice Warren Burger, a Republican appointee to the court, delivered the Court’s unanimous opinion. “Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices. While "whites register far better on the Company's alternative requirements" than Negroes,” it is because the “petitioners have long received inferior education in segregated schools.” In addition, “neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used . . . [E]mployees who have not completed high school or taken the tests have continued to perform satisfactorily, and make progress in departments for which the high school and test criteria are now used.”
In June 2015, a narrow majority of the Supreme Court upheld the “disparate impact” standard again in Texas Department of Housing and Community Affairs v The Inclusive Communities Project. In this case, the court’s majority opinion was delivered by Justice Anthony Kennedy, a Reagan appointee. The 1968 Fair Housing Act bars intentional discrimination and policies and practices that have a disparate impact. Kennedy wrote, “Much progress remains to be made in our Nation’s continuing struggle against racial isolation. In striving to achieve our ‘historic commitment to creating an integrated society,’ we must remain wary of policies that reduce homeowners to nothing more than their race. But since the passage of the Fair Housing Act in 1968 and against the backdrop of disparate impact liability in nearly every jurisdiction, many cities have become more diverse. The FHA must play an important part in avoiding the Kerner Commission’s grim prophecy that ‘[o]ur Nation is moving toward two societies, one black, one white – separate and un-equal.’ The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.”
Responding to the Trump Executive Order, Dariely Rodriguez, the acting co-chief counsel for the Lawyers’ Committee for Civil Rights Under Law, declared “This order aims to destroy the foundation of civil rights protections in this country, and it will have a devastating effect on equity for Black people and other communities of color,” which is clearly the intent of the Trump Administration.
