On April 23, President Donald Trump signed an executive order aimed at narrowing civil rights protections and directing federal agencies to roll back the use of the disparate impact standard in "all contexts to the maximum degree," including across housing, lending, employment, education and health care. The order represents a major reversal in civil rights protections, undermining a critical enforcement tool that has for decades been used to challenge policies and practices that appear neutral but impose unjustified and discriminatory barriers for marginalized communities to housing, jobs and more.

Just last month, for example, the U.S. Equal Employment Opportunity Commission — the federal agency responsible for enforcing workers' rights — announced it would stop investigating complaints about company policies that may disproportionately harm certain groups but don't discriminate explicitly. The shift undermines decades of progress in workplace equality, stripping away a key mechanism that has helped expose and remedy hidden bias.

What is Disparate Impact Liability?

Federal civil rights laws protect against discrimination on the basis of race, national origin, religion, sex, disability and age in housing, employment, education and other aspects of society. When many of these laws were first enacted, they offered critical protections against overt forms of discrimination — such as restaurants and stores that openly refused to serve Black customers — that not long before had been sanctioned by the federal government. At that time, Congress also recognized that discrimination isn't always about intent, but is often built into systems and policies, and that civil rights protections were necessary to remedy long-standing patterns of systemic inequality in our country.

For these reasons, civil rights laws incorporate disparate impact liability, which focuses on the consequences of policies on protected groups, not just the express motives for putting those policies in place. Ever since, disparate impact liability has been a vital tool in advancing equality. In 2014, the Supreme Court remarked on the role of disparate impact in Texas DHCA v. Inclusive Communities: "It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent (discrimination) that might otherwise result from covert and illicit stereotyping."

How Does Disparate Impact Liability Work?

First, disparate impact analysis asks whether there is a disparity caused by a particular policy or practice. Second, it asks if there is a legitimate, nondiscriminatory need for the policy. If so, it asks if there is an alternative way to meet the need that does not result in disparate impact. Statistics are an important part of disparate impact analysis, but they are never the sole facet of inquiry. The multistep road map provided by disparate impact analysis allows for careful consideration.

Disparate impact liability has advanced civil rights in many areas. In the housing sector, disparate impact suits have invalidated housing restrictions that arbitrarily and unfairly exclude people of color from certain neighborhoods, perpetuating segregation. For example, in the wake of Hurricane Katrina, St. Bernard Parish blocked the construction of affordable multifamily housing and restricted housing rentals to blood relatives in an area that was roughly 88% white and 7% Black. For no good reason, these actions made it harder for Black people to live in the area. Disparate impact analysis was applied to challenge and invalidate these acts.

The Department of Education has also signaled its intent to do away with disparate impact enforcement, despite the important role this tool serves in ensuring all students have access to educational opportunities. First, investigating disparate impact can reveal evidence of discriminatory treatment. For example, a school may have a goal of reducing tardiness to maximize time in class. However, if Asian American students tend to live in a neighborhood farthest from the school and often experience bus delays, then the policy would cause them to receive a higher number of tardies, leading to school suspensions. A disparate impact analysis would prompt consideration of whether the school could redesign its bus routes to reduce delays, or look to alternatives to discipline for tardiness due to bus delays. Removing unfair and unnecessary barriers to education furthers equal opportunity. Ignoring them creates an unequal playing field for some schoolchildren.

The availability of disparate impact is also important for challenging emerging forms of discrimination. In the age of big data, employers, lenders, insurers and others have increasing access to data about us — things such as where you shop, whether you just got married and whether you are interested in products for Black hair. Access to this data makes it easier to differentiate and target groups and easier to produce disparate impacts, affecting whether you see a job opportunity, how much you are charged for health insurance or whether you are marketed a loan with high-risk terms. Thinking about disparate impacts is critical to ensuring that advances in technology don't expand inequality and segregation.

How Is the ACLU Fighting Back?

The ACLU has long relied on disparate impact liability as a tool to remove systemic barriers to opportunity in housing, employment, education and beyond for historically marginalized people. For example, the ACLU has fought to remove unjust barriers to housing opportunities for Black women and other renters of color by challenging landlords' use of blanket bans on prior eviction records, regardless of whether the eviction cases were dismissed, filed unlawfully or occurred many years ago. The ACLU has also worked to end so-called "nuisance" and "crime-free" ordinances that unfairly and disproportionately jeopardize housing opportunities for people of color, immigrant families, domestic violence survivors and people with disabilities.

The ACLU is committed to defending existing civil rights protections against disparate impact discrimination. We have fought back against the administration's efforts to roll back these critical protections, including by opposing the administration's recent attempts to eliminate the Department of Energy's disparate impact regulations and challenging its past attempt to gut the Department of Housing and Urban Development's existing disparate impact standards. No one should be unfairly excluded from equal access to opportunities in housing, employment or education based on arbitrary and discriminatory policies and practices.

Sarah Hinger is the deputy director of the ACLU Racial Justice Program. Linda Morris is a staff attorney in the Women's Rights Project. Ricardo Mimbela is ACLU communications strategist. For more than 100 years, the ACLU has worked in courts, legislatures and communities to protect the constitutional rights of all people. With a nationwide network of offices and millions of members and supporters, the ACLU takes on the toughest civil liberties fights in pursuit of liberty and justice for all. To find out more about the ACLU and read features by other Creators Syndicate writers and cartoonists, visit the Creators website at www.creators.com.

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