Disparate treatment v. disparate impact is today’s subject. The concepts arise in discrimination laws passed mostly in the 1960s. The Society for Human Resource Management (SHRM) offers a detailed explanation here; in simple terms, disparate treatment involves intentional action directed at someone on account of their status—race, color, religion, gender, etc. Contrariwise, disparate impact results from seemingly neutral activities which adversely affect people on account of their status.
Increasingly, disparate treatment claims are being undermined in courts. On January 21 the U.S. Supreme Court heard oral argument in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., No. 13-1371. Amy Howe from SCOTUSblog provides an excellent review of the case, within the context of the oral argument, in Justice Scalia keeps both sides guessing in Fair Housing Act case: In Plain English. (For non-clickers, the case involves claims under the Fair Housing Act, as amended. Originally, the Act allowed disparate impact claims. In 1988, Congress amended the Act to eliminate three types of disparate impact claims, and did nothing else which is relevant here. Texas claims disparate impact claims are history, while the Project says the limitations associated with the amendment validate all other disparate impact claim theories.)
I’ll be watching for a decision in this case, and am especially interested in where Justice Scalia ends up. That aside, I think the fight over disparate impact jurisprudence informs us greatly about the state of our society.
If you don’t believe income and wealth gaps have grown substantially over the past few decades, my argument will make little sense. However, for many there is a recognition that gaps have grown, but no willingness to accept the notion that action might change the situation. A lack of confidence in government/other institutions matters, but I think another element is a “don’t blame me, I did nothing wrong” mentality. And, in fact, most people on the better side of the inequality gap have done nothing wrong, and many things right. Still, we have a problem.
So it goes with many other issues. Take climate change. No serious debate exists about the Earth getting warmer, that we will suffer serious consequences, and that human beings—especially those in the First World—have caused the problem. Yet, the U.S. Senate voted 50-49 in favor of a resolution denying responsibility. Why? I think it boils down to not “owning” some incremental part of a very big problem. How could my trip to Safeway in the Hummer I bought, lawfully, matter?
Or take campaign finance laws. First Amendment this, First Amendment that, “corporations are people, my friend,” and we have ended up with a system bought and paid for by the richest of the wealthy. No one to blame, nothing to see, move along.
Disparate impact lawsuits are hard to stomach. I did nothing wrong, my motives are pure (in my mind, anyway), and because some statistician says my actions, otherwise lawful, have resulted in segregated neighborhoods, or a lack of workplace diversity, I have to pay? Or change my conduct?
I’m still getting my head around the notion that we are dead in our tracks on many, many fronts, with no one’s fingerprints on anything. And yes, I really do understand the personal umbrage associated with getting blamed, based only on a statistical study. (Does anyone other than a mathematician really understand stats? Really?)
Obviously, if you think we’re in fine shape, ignore my concerns. And if you think the problem is poor people living large of our capital and labor, the evidence does not exist to support that view. Anecdotes about some guy buying lobster with food stamps? Sure. Evidence. Show me.
Expect more observations on this topic, I think. The concepts are not yet fully gelled for me, but I do think we need to figure this one out.
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